Tiyamiyu v London Borough Of Hackney [1998] UKEAT 6_97_2907

EAT
Tiyamiyu v London Borough Of Hackney
[1998] UKEAT 6_97_2907 · 1998-06-17
MR JUSTICE KIRKWOOD : This an appeal by Mr Tiyamiyu from the decisions of an Industrial Tribunal at London (South) dismissing two Originating Applications by which the appellant complained against the London Borough of Hackney and Ms M Taylor of discrimination on the ground of race contrary to the Race Relations Act 1976 . The first of those two Originating Applications came into being as a consolidation of six earlier ones.The Industrial Tribunal heard the case over some 22 days between October 1994 and November 1995. It is plain to us that it went into matters with care and thoroughness. Extended reasons for the decision, in 49 pages, was sent to the parties on 4th September 1996. The decision was unanimous.Following it, the Industrial Tribunal heard on 3rd February 1997 applications for costs. At the conclusion, the Industrial Tribunal awarded the respondents their costs in respect of a wasted day in 1993, those costs to be taxed on County Court Scale II on a full indemnity basis. As to the rest of the case, the Industrial Tribunal awarded the respondents 50% of their costs, also it had to be taxed on County Court Scale II on an indemnity basis. Extended reasons for the costs decision were sent to the parties on 30th April 1997.Mr Tiyamiyu appeals against all those decisions.The appellant, who is a black Nigerian, was employed by the respondent as a Principal Finance Officer in Leisure Directorate from 4th January 1989.During 1989 the appellant lodged two grievances against the Director of Leisure Services, Mr Stewart. He alleged unfair treatment and race discrimination.The Director of Education, Mr John, heard the grievances and reported his findings in August 1990. He upheld the grievances. Normally, disciplinary proceedings against Mr Stewart would have followed. But by then he had already given notice of his resignation and he left the employment of the respondents three or four days after Mr John's findings came out.The Chief Executive, Mr White, took up Mr John's findings, and took steps to ensure that the matters raised by Mr John were addressed.With Mr Stewart's resignation, the post of Director of Leisure was vacant and was covered by a temporary appointment until December 1990, when Ms Taylor took up the position. She remained in post until June 1994 when she was made redundant.During 1990, and before Ms Taylor's appointment, the post of Head of Support Services in the Leisure Directorate had been established by the appropriate committee of members. Not only was that post established by committee in 1990, but the associated and consequent questions of job description and reporting lines were addressed.Those matters went to an arbitration panel in July 1990 and the appellant made representations. Hitherto he had reported to the Director of Leisure Services and had a "dotted line" reporting function to the Finance Director. Implementation of the new structure would interpose the Head of Support Services between the appellant and the Director of Leisure Services. The appellant felt that he would be removed from third tier to fourth tier.In July 1990 the arbitration panel found:
"The overall responsibility for the finance function (by the Head of Support Services) would not prejudice the independence and financial control responsibility of the Principal Finance Officer and the dual reporting line to the Finance Director. It is for the management to determine the reporting structure and there is no requirement that prior specific agreement of the employee has to be obtained before a change is implemented."
Carrying that forward in October and November 1991, Ms Taylor proposed that a number of officers reporting directly to her would be reduced from eight to three, and that included the appellant reporting directly to the Head of Support Services.Ms Taylor discussed this with the appellant in November 1991. He maintained his position and contended that the Head of Support Services post had not been properly approved by the Council, that Ms Taylor was taking on and implementing one of Mr Stewart's ideas, and that the idea was racially motivated.Following the meeting, Ms Taylor took advice from Mr Yeboah, Head of Personnel Services, and from the Director of Finance. She passed on to the appellant the advice that she received.The Management Services Section produced a report about the totality of restructuring in the Leisure Directorate and that went to the Community's Services Committee on 2nd December 1991. The Committee recognised that the existing structure, inherited by Ms Taylor, was acutely out of balance and gave raise to managerial and communication difficulties. The recommendation (to which we have referred) was adopted.Despite the advice sought by Ms Taylor and passed on to the appellant, the appellant argued that all this was contrary to assurances given to him by Mr White, the Chief Executive, after Mr John's investigation in 1990.Those assurances contained this passage:
"Your concerns about the possibility of victimisation have been passed on to me and I can assure you that any involvement of this should be thoroughly investigated and dealt with severely. I am also concerned that you are afforded the proper status of a key member of Leisure Services Management Team a matter which the Acting Director tells me he has already taken up."
In this regard, the Industrial Tribunal made these findings:
"(a)The settling of the job description and reporting lines to the Head of Support Services predated Mr White's assurances; (b) predated Ms Taylor's joining the Council; (c) was approved in accordance with proper Council procedures. (d) Recruiting for the post of Head of Support Services and the change in reporting line were not contrary to any assurances given by the Chief Executive."
The Industrial Tribunal also found:
"Ms Taylor's reasons for making changes and reducing the size of the District Management Team with the resulting effect on the Applicant's reporting lines was solely administrative and operational."
"The Applicant's resultant removal from the DMT was not personal, not racially motivated and was purely for good operational reasons."
Sometime in the first part of 1992, and certainly by mid-May 1992, Mr Gunn was appointed to the post of Head of Support Services. He was to take up the post on 1st June 1992.Concurrently, or more or less so, it had been decided that additional staff would join the Leisure Directorate as of 1st June 1992.Staff accommodation was already causing difficulties; and with further staff coming but with no further accommodation, rearrangements were necessary.Ms Taylor asked Mr McCaulay, Principal Administrative Officer, to review the office accommodation and to make proposals. Apparently he did not come up with proposals and by mid-May it was becoming urgent. Ms Taylor asked Mr Gunn to liaise with Mr McCaulay, to take over any initial draft and to produce draft proposals for discussion.Mr Gunn did that. He made proposals incorporating and expanding on work Mr McCaulay had been undertaking. Mr Gunn's paper was circulated to management team members (which included the appellant) in advance of a meeting at which it was to be discussed on 21st May 1992.The appellant was not happy with the proposals. In short, he felt that he was being moved to less good accommodation. He attended the meeting. The Industrial Tribunal made detailed findings as to what occurred. In barest summary, the appellant behaved in an uncontrolled and hysterical manner. He made it impossible for Ms Taylor to chair the meeting. To her offer to investigate his concerns, he responded that "he would get no justice from this Director". That, the Industrial Tribunal found, was "a direct and personalised accusation made against Ms Taylor's professionalism ... The Applicant's outburst was both verbally abusive and was unjustified."All efforts to calm the appellant failed. He left the meeting shouting and crying hysterically, saying that he was going to see the Chief Executive, that the accommodation proposals were racially discriminatory and that he would go to the Commission for Racial Equality if he did not get satisfaction.There is no need for us to recount the detail of how the appellant more or less forced the Chief Executive, despite other commitments, to see him that day. The appalling scene outside the Town Hall, the appellant's abuse of the Chief Executive and all that occurred are set out in the Industrial Tribunal's findings of fact.The Chief Executive wrote to the appellant within a few day of that meeting. The letter was handed to the appellant by Ms Taylor on 26th May 1992. It concluded:
"The Council takes seriously all allegations of racial discrimination and is duty bound by its procedures and Codes of Practice to investigate them. Given the wide scope of your allegations, it will be necessary to set up proper terms of reference. If, following advice from appropriate officers, I decide to set up a formal enquiry to do so, it would be necessary for you to put your allegations in writing.
May I suggest, therefore, that you confirm in writing as soon as possible the issues you outlined at our meeting."The appellant did not write to the Chief Executive about that.Meanwhile, following the meeting of the Management Team on 21st May, Ms Taylor decided that the appellant's conduct at the meeting should form the basis of a disciplinary charge against him. She partly had in mind, as the Industrial Tribunal found, that on a previous occasion the year before, in May 1991, the appellant had behaved abusively to her in a DMT meeting. On that occasion Ms Taylor had dealt with the matter internally and had accepted an undertaking that such conduct would not be repeated.Having given the appellant Mr White's letter on 26th May, Ms Taylor saw the appellant later that day with his union representative. She issued to him a notice of complaint about his conduct on 21st May and she suspended him.The appellant's response to that was that the notice of complaint was issued because he had complained of racial practices in the Leisure Services Directorate, and that both the notice of complaint and suspension were acts of victimisation.That sequence of events led to the appellant making a number of complaints to the Industrial Tribunal.On 5th August 1992 the appellant lodged with the Industrial Tribunal six separate Forms IT1. In each, he recounts his 1989/1990 grievance and referred to the assurances given by the Chief Executive. In each he said he was being victimised and discriminated against. The six IT1's then each make a specific complaint:
"1 On 26 May 1992 I was suspended from work on the pretext that I had not behaved professionally in making a complaint of race discrimination.
2. On 26 May 1992 the Council's Disciplinary procedure was invoked against me on the pretext that I had not behaved professionally in making a complaint of race discrimination.3. On 21 May 1992 despite repeated complaints of race discrimination the current Director of Leisure Services continued in her attempt to remove myself and other non-whites from the Divisional Management Team and continued to try and downgrade my job/status.4. On 21 May 1992 the current Director of Leisure Services introduced a proposal to downgrade my accommodation and that of other senior non-white staff in favour of enhanced accommodation for white staff.5. On 21 May 1992, despite repeated complaints of race discrimination the current Chief Executive failed to take appropriate action against the Director of Leisure Services and continuing discriminatory culture of the Directorate. In doing so he has demonstrated that he is prepared to allow senior officers of the Council to flout its equal opportunities policy, the Race Relations Act 1976, the Local Government and Housing Act.6. On 21 May 1992 these acts of race discrimination/victimisation had caused me considerable emotional distress."Following the notice of complaint given to the appellant by Ms Taylor on 26th May 1992, the appellant, on 28th May 1992 issued a grievance against Ms Taylor. He complained of harassment that was racist, discriminatory and demeaning; and referred particularly to, and complained about, the reporting line and accommodation matters; and, additionally, that he had been prevented on a number of occasions from raising at management team meetings issues concerned with racism and equal opportunities.Ms Taylor's notice of complaint and the appellant's grievance were heard at a Local Officer Hearing by Mr Sugrue on three consecutive days beginning on 5th October 1992. No complaint of racism is made by the appellant about Mr Sugrue or his conduct of that hearing.Mr Sugrue found that Ms Taylor's notice of complaint of gross misconduct was substantiated; but that, in the light of mitigating circumstances (the appellant had been upset about the office accommodation proposals) the appellant should be severely reprimanded rather than dismissed.The appellant's grievances against Ms Taylor were not upheld. Mr Sugrue made very detailed findings which were set out by the Industrial Tribunal in its extended reasons [para. 12(xxxi)].It is necessary, for the narrative of this judgment to refer to two matters from Mr Sugrue's report for the importance the appellant attaches to them. The first was a finding that:
"It was accepted that every black Principal Officer at Shoreditch Municipal Offices lost space whilst some white staff gained. ...
The outcome of the draft exercise on office accommodation did discriminate against senior black staff even though I accept that was not intended."In subsequent proceedings it became clear that that was not the case.The second is this passage:
"I would also recommend that there is further attempt to provide training in Leisure Services Directorate, not because I have found evidence of intentional racism, but in order that there is better appreciation of the effects of racism and how it might be better understood and avoided."
The appellant appealed against Mr Sugrue's decision both in relation to the notice of complaint and the grievances. The appeals were against the severity of the decision for a severe reprimand; and against the dismissal of the appellant's grievances.The appeal came before an Employee Appeal Sub-Committee on 4th February 1993, chaired by Councillor Burnell.In fact, recent changes in the respondent's procedures had removed an appeal to the Employee Appeal Sub-Committee except in cases in which disciplinary proceedings had led to dismissal. So the Sub-Committee held that it had no power to deal with the appeal against the severe reprimand.The Employee Appeal Sub-Committee heard, and dismissed, the part of the appellant's appeal against the dismissal by Mr Sugrue of his grievances that went to the accommodation proposals. It did not hear those parts that went to changes in the reporting line or to the opportunity to raise equal opportunity issues at DMT meetings, on the basis, as we understand, that they related to operational matters and were more properly dealt with at a Personnel Appeal Committee.The Industrial Tribunal gave detailed consideration to the events leading up 9th February Sub-Committee at to what occurred at the meeting. In the course of the Sub-Committee's written decision it is recorded that Mr Sugrue told the Sub-Committee that since he had held the Local Officer hearing in October, he had been informed that two senior black officers would have been given additional space and two senior white officers would have lost space under the draft proposals.The Personnel Appeal Committee (or arbitration panel) met to hear other matters on 9th and 10th March 1993.Again, the Industrial Tribunal gave detailed consideration to what took place and referred to it in its extended reasons:
"The personnel appeal panel met on the 9 and 10 March 1993 to consider the Applicant's appeals against the sever reprimand and his appeal in respect of change in reporting lines by Ms Taylor and the fact of Ms Taylor not allowing him to raise race matters at DMT meetings. The Applicant attended and presented his evidence and documentation on the 9 March. He was unable to attend on 10 March. The reason given by the Applicant for his non attendance at the time was that he had to take his daughter to the doctor. The Applicant contacted the Council by phone. He did not actually ask for an adjournment. The Applicant later produced a medical certificate for himself being a certificate for seven days absence from work on the grounds of stress which covered the period from 10 March 1993.
It was the unanimous of the Arbitration Panel (it consisted of Mr Brooks Management side and Mr Jennings staff side) not to adjourn because of the Applicant's absence. ... The Applicant had been present on the first day of the Personnel Appeal Panel Hearing, numerous documents had been submitted by the Applicant to the panel and he had on the first day given evidence and set out his arguments. The Appeal Panel considered the complaints raised by the Applicant regarding his job description and the change in his reporting line and his removal from being a full member of the DMT. The Panel were satisfied that the Applicant had put all of his points across on the first day of the hearing. The Appeal Panel in reaching the decision on the complaint brought to them by the Applicant were constrained by the decision of the Arbitration Panel which had met in July 1990 and which had approved the Head of Support Services job description. The Panel was also satisfied that the Applicant had not been prevented from raising race issues with Ms Taylor, that he had in fact raised such issues and they had been investigated."Reference to the written decision of that meeting indicates that the Industrial Tribunal, in the summary it gave, may have lost some of the detail on one aspect. That record shows that the Panel had not in fact sat until 2.30 p.m. on the second day, 10th March, in order to enable the appellant to sort out his childcare responsibilities.Not only was the appellant absent from work for the whole of the 10th March (not just the morning of 10th March), but he was also absent on 11th March. He did not personally notify the Director of these absences, as procedures required. On 12th March the respondent received a sick note signed by a doctor on 11th March 1993 signing the appellant off work for one week with flu. It did not cover the afternoon - or any part of - 10th March. Only later, on 23rd March did a document about 10th March come into existence:

"Mr Tiyamiyu came to the surgery with his child on Wednesday 10 March."

Ms Taylor had had occasion to write to the appellant about sick leave procedures at the end of 1991. The Industrial Tribunal dealt with that, setting out relevant correspondence. It expressed this conclusion:
"In our opinion the correspondence revealed the Applicant was over sensitive to normal managerial requirements, instantly taking offence and responding in an offensive/provocative manner to his superior.
The Applicant appears to us to resent authority of any kind.The Council's procedures and requirements for sickness/absence reporting were raised at various DMT meetings.In early 1993, because of a bad sickness record within Hackney, it was decided that the sickness procedure should be strictly observed. If an individual had six days absence in any six month period, then the employee was to be given or to be considered for counselling."Ms Taylor took up with the appellant his absences on 10th and 11th March 1993. Correspondence followed. Certain explanations were given by the appellant together with protestations, his letter concluding:
"Finally, I would to express my dissatisfaction about the uncaring manner of your letter and to let you know that I consider the last two paragraphs of your letter as a form of threat, harassment and victimisation. I believe I am being treated in this manner because I have lodged a complaint of racial discrimination against you at an Industrial Tribunal."
On 14th May 1993 the appellant made a further complaint to the Industrial Tribunal, again alleging racial discrimination and victimisation. He complained about the severe reprimand; he complained about the way in which Councillor Burnell conducted the hearing before him; he complained about the short notice of the meeting of 9th March; he complained that he had requested an adjournment of the hearing on 10th March, that he had been told that there would be an adjournment but the hearing proceeded; he complained of being threatened with disciplinary action over his sickness absence.Pursuant to a directions hearing, the six Originating Applications lodged on 5th August 1992 were consolidated into an amalgamated Originating Application on 13th August 1993. The details of the complaints were substantially elaborated and ran to nine pages.No suggestion is made in this appeal that the Industrial Tribunal failed to address any of the specific complaints made by the appellant. It is clear to us that it did so.The Industrial Tribunal found that there was no continuing discrimination by the respondent Council or by the Chief Executive following the Guss John report. It found that the complaints relating to the reporting lines and structural changes were out of time. Time was not extended. Even if in time, the changes were not racially motivated. On the accommodation proposals, the appellant "jumped the gun". He should have discussed the proposals and considered the resulting decision. In any event, the Industrial Tribunal found on the facts before it that the proposal did not discriminate against the appellant by reason of his race. The Industrial Tribunal accepted Ms Taylor's evidence that she issued a notice of complaint and suspended the appellant on 26th March 1992 because of his behaviour and for no other reason.The Industrial Tribunal considered evidence about three postulated comparators on the disciplinary question. They were Mr Stewart, Ms Taylor and a Mr Bartholomew. The tribunal rejected the appellant's submission that his treatment was different and that that difference in treatment was as a result of his colour. The Industrial Tribunal found as a fact that the appellant was not comparing like with like. "We do not consider that the actions on the part of Ms Taylor were motivated by racial considerations nor were they victimisation."So far as the specific allegation against the Chief Executive was concerned the Industrial Tribunal said:
"We do not find that the Chief Executive either encouraged or discouraged Ms Taylor from taking the steps in respect of suspension and the notice of complaint. We do not find that his failure to prevent suspension or issue of the Notice of Complaint was racially motivated and was not part of any continuing act."
The Industrial Tribunal did not find Councillor Burnell's conduct of the Employment Appeal Sub-Committee to be motivated by race or that he discriminated against the appellant on the grounds of race. As to the question of adjournment on 10th March, the Industrial Tribunal held that there was not a shred of evidence before it that the decision to refuse an adjournment was connected with race.The Industrial Tribunal also considered the complaint as to Ms Taylor taking up with the appellant the matter of sick leave procedures in 1993. The Industrial Tribunal concluded:
"The Applicant appeared paranoid that any decision that was made that was not as he wished or exactly to his liking was racially motivated. The Applicant could not accept any normal managerial guidance/counselling without taking offence. The Applicant displayed an arrogance before this Tribunal and that arrogance he clearly displayed in his attitude and conduct in the work place. Often this attitude unfortunately lead to fairly minor issues being blown up and escalated out of all proportion. At the end of 1991, such a situation arose in connection with the Applicant's sickness absences. .... In March 1993 the situation seemed to be that the Applicant had indicated that he would not attend the second day of the Arbitration Panel because he had to take his daughter to the doctor; subsequently a doctor's certificate revealed that it was he who was ill. It was where there are conflicting versions being given for the same event that management are entitled to become suspicious and entitled to request a strict compliance with procedure. It was the Applicant's attitude to the absence procedures that prompted Ms Taylor to take a tough line. Ms Taylor did not react because of a difference in race."
In preparation for this appeal, the appellant lodged a Notice of Appeal dated 14th October 1996. Further and better particulars of the Notice of Appeal were dated 30th September 1996. A Notice of Appeal against the costs decision was filed on 10th June 1997. Additional grounds of appeal were lodged in January 1998 followed by a consolidated amended Notice of Appeal on 29th January 1998. On 13th April 1998 the appellant lodged a further (though very substantially similar) consolidated amended Notice of Appeal, which we have taken as the document upon which he relies.We were assisted in hearing the appeal by the appellant's skeleton argument dated 15th June 1998, and by the respondent's skeleton argument which was undated.The appeal was set down for two full days during which we heard very detailed argument from the appellant and very short argument from the respondent.At the start of the second day of hearing the appellant applied to adduce further evidence. We rejected that application for the reasons given at the time. Those reasons have been transcribed. At the end of the second day, and at the conclusion of the hearing, the appellant applied for a review of the decision taken earlier in the day. We refused the application for a review.In our transcribed reasons it was necessary for us to make reference to time. At various points during the hearing of the appeal, indeed, it was necessary for us to try to persuade the appellant to marshall and pace his submissions so that they could be addressed in the generous time allowed for the appeal. We, of course, have the skeleton argument. The appellant in fact addressed us upon it very fully.The first ground of appeal developed before us was that the Industrial Tribunal applied the wrong test to the direct race discrimination complaints. It asked itself whether the respondent's action were "motivated" by racial matters. The "motivation" test is the wrong test. The appellant referred us to a number of authorities including:

Din v Carrington Viyella Ltd [1982] IRLR 281

Equal Opportunities Commission v Birmingham City Council [1989] 1 AER 769

The appellant reminded us that if the case contains anything which is bad law which bears upon the determination, it is erroneous in point of law and the Appeal Tribunal must intervene.The appellant submitted that the sole question for the Industrial Tribunal was whether he had been treated less favourably than others on racial grounds.The appellant drew our attention to the various passages in the extended reasons.At paragraph 60:
"We do not consider that the actions on the part of Ms Taylor were motivated by racial considerations."
At paragraph 66:

"We do not find that the conduct of Councillor ... was motivated by race. ..."

At paragraph 64:
"The changes with the resultant effect on the Applicant were for proper administrative/operational reasons and were not motivated by race."
In evaluating the force of those submission, we have considered first the directions the Industrial Tribunal gave itself as to the law. The law was dealt with at paragraphs 13 to 16 of the extended reasons. Furthermore, the Industrial Tribunal had regard to a large number of authorities put before it in the course of argument. We refer particularly to the Industrial Tribunal's directions to itself in paragraph 14, in the context of King v Great Britain China Centre [1991] IRLR 513 and in paragraphs 15 and 16.The appellant does not submit that its directions were wrong, nor could he profitably argue that there were. They were plainly careful directions.Secondly, we have considered the approach actually taken by the Industrial Tribunal, not looking just at the short passages drawn to our attention by the appellant but looking at them in their immediate context and in the overall context of the extended reasons as a whole. Following that approach it is clear that in, for example, paragraph 60 of the extended reasons, the Industrial Tribunal found that Ms Taylor's notice of complaint and the suspension (which is nowhere, incidentally, found to have been less favourable treatment) was solely because of the appellant's conduct and had nothing to do with race.Likewise, in paragraph 64, the core finding is that changes in reporting lines and management structures were for proper administrative/operational reasons. In paragraph 66, Councillor Burnell did not discriminate against the appellant on the grounds of race: he was merely trying to take a firm line so as to enable his Sub-Committee to deal with the issues which is bound to deal with and no others.Looking at those particular paragraphs, and considering the extended reasons as a whole, it is absolutely clear to us that "motive" was not being used by the Industrial Tribunal as a term of art but in a colloquial sense, synonymously with "ground". The conclusion is entirely in keeping with the Industrial Tribunal's directions as to the law. We are entirely satisfied that it did not apply a wrong test.The second ground argued before us was delay. The hearing was concluded just before the middle of November 1995; the extended reasons were sent to the parties nearly 10 months later on 4th September 1996.The appellant relied upon the decision of the Court of Appeal in Rex Goose v Sandford & another and produced a transcript of judgments under CH 1991G8026/CH 1994G2283. In particular, the appellant relied on this passage at page 40:
"A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the losers confidence in the correctness of the decision when it is eventually delivered. ... Conduct like this weakens public confidence in the whole judicial process. ... Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. ... But the very fact that the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him."
In his submissions to us, the appellant drew to our attention what were inconsistencies of finding in the extended reasons, which did not appear to us, however, to be significant to the conclusion. He also reminded us of imprecise findings over medical certificates to which we have made passing reference. The core of the appellant's submission before us was that it should be inferred that the tribunal had forgotten large parts of the essential facts and evidence in the case, and that it had no clear recollection or impression of the demeanour of the witnesses of fact or their credibility by the time the decision was promulgated.It is, of course, regrettable that ten months elapsed between the conclusion of the hearing and the completion and sending out of the extended reasons. We express that view even in the realisation of the vast amount of material the Industrial Tribunal had to assimilate and the considerable time and work that that would necessarily involve.But the question for us is whether there is a significant risk of the written decision being unreliable and unsafe because of the delay. Was the delay such that memory of the evidence and findings on the evidence had become distorted?This is plainly not a case in which, at the conclusion of the hearing, the Industrial Tribunal put away the papers and only got them out many months later for the purpose of preparing the extended reasons. On 19th February 1996 the ROIT wrote to the appellant that the Chairman "apologises for the delay in informing you of the decision ... At present he is working on the third draft of the decision and it will be issued as soon as possible." We have no information as to what occurred thereafter. But it does appear from that letter that a good deal of the work had already been done within three months of the end of the hearing.Whilst the appellant highlights inconsistencies chiefly to do with the question of adjournment of the Personnel Appeal Panel hearing, a reference to medical certificates pertaining to the same period, and to the mis-description in paragraph 15 of the extended reasons of the costs decision of Miss Andrews as a witness for the respondent (cf. para. 2 of the extended reasons of main decision), it is notable that there is no substantial criticism of findings of fact over a very large compass. Furthermore, it is clear that from the extended reasons, both on liability and on costs, that the Industrial Tribunal formed and retained a clear impression of the appellant and the reliability of the key witnesses before it.Although late, this decision is not, in our judgment, unsafe.The next ground of appeal argued before us is that the Industrial Tribunal wrongly took a fragmented approach. In respect of each particular complaint, it found the primary facts and decided that there was no racial discrimination. But what the Industrial Tribunal should have done and failed to do (it is argued) was to consider whether an overall inference should be drawn from the totality of the facts in the case.The appellant relied in particular on Querishi v University of Manchester EAT/484/95 , and the passage from the judgment of Mummery J, at page 19. To put that into context, we refer first to a passage at page 17:
"It [ the Tribunal ] must also consider what inference may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits? ... They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue namely, whether the acts and decisions complained of in the proceedings were discriminatory "on racial grounds". The function of the Tribunal in relation to that evidence was therefore two-fold: first, to establish what the facts were on the various incidents alleged by Dr Qureshi and, secondly, whether the Tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of."
Later on at page 19 Mummery J said:
"In the present case it is necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and the for the Tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decision complained of in the originating applications were on "racial grounds". The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the accumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. ..."
Qureshi is not authority for the proposition that an Industrial Tribunal, considering specific complaints is not entitled to consider racial grounds in respect of them. The point, as it seems to us, is that the tribunal should look also at the totality of the evidence because that may have an eloquence of its own.In this case, the Industrial Tribunal did consider the inferential approach; but the fundamental obstacle in the appellant's path is that nowhere in its decision did the Industrial Tribunal find any discrimination.Fourthly, the appellant seeks to argue a breach of natural justice.In paragraph 30 of the extended reasons for its costs decision, the Industrial Tribunal said:
"The Tribunal believes at the outset that the Applicant genuinely believed that he was discriminated against on the grounds of race by the Respondents. The Tribunal believes that that was the position when the Originating Applications were lodged. However, we believe that by the time the matter came before a Tribunal that was not the case and the Tribunal believe that the Applicant should by then have had serious doubts about his convictions when he had received fully pleaded the Notice of Appearance. At the Tribunal the Applicant set out to damage as best he could the reputation of all his white colleagues. The Applicant's conduct before the Tribunal left must to be desired."
The appellant argues that the Industrial Tribunal had formed a view against him in the light of the pleadings and that therefore its mind was set against him. That was, of course, before the evidence was heard.We note that the appellant raised a question of bias at an early stage of the hearing before the Industrial Tribunal. In giving reasons for an interlocutory order made on 25th October 1994 the Industrial Tribunal included this paragraph:
"18. The second matter which needs to be addressed and was referred to is that the Applicant indicated during the Hearing yesterday that he felt that the Chairman was biased and further indicated that he had no confidence in the Tribunal as constituted and wished the Tribunal to be reconstructed. The Tribunal discussed the situation and the comments made. The Chairman is perfectly satisfied that there is no bias whatsoever towards one party or the other and having considered the Applicant's representations, is perfectly satisfied that the Tribunal as constituted is able to fairly deal with the Applicant's case and proposes to do so."
Before us, the appellant submitted that on the first day of the hearing the Chairman made a remark "there is no racism in this case". Counsel, Mr Algazy, who appeared below and appeared before us, told us that no such remark was made. We accept that.The passage in the extended reasons for the costs decision upon which the appellant relies does not begin to inform us that the Industrial Tribunal prejudged the case. It informs us only that, looking back over all the evidence that it heard, the Industrial Tribunal considered that the appellant (who knew the details before the hearing began) should have been caused doubt as to his case by the fully pleaded Notice of Appearance.We reject this ground of appeal.The fifth ground of appeal goes to the victimisation case. The Industrial Tribunal failed, it is said, to make specific findings of less favourable treatment. Furthermore, the Industrial Tribunal misunderstood the evidence as to sickness reporting.The appellant relied upon another decision of the Employment Appeal Tribunal (Mummery J) that London Borough of Hackney v Fashola EAT/116/94 EAT/115/94 . At page 7 Mummery J said this:
"The error of law in the mis-application of Section 2 of the Race Relations Act 1976. That creates the offence of discrimination by way of victimisation . As indicated by the side note of the Section, there are two elements in the offence; one is discrimination, in the sense of less favourable treatment, and the other is that the discrimination is by way of victimisation, i.e. for an impermissible reason. ...
. .. it is necessary for an Industrial Tribunal, when applying Section 2, to answer two relevant questions. The first is whether the complainant was less favourably treated than someone who has not done the protected act within Section 2(1). Secondly, whether that less favourable treatment, if it is established, was due to the complaint made to the Industrial Tribunal or the commission of some other protected act identified in Section 2(1). ... The first question of less favourable treatment necessitates a comparison to be made by the tribunal. The tribunal has compare the treatment alleged to have been applied by the discriminator to the complainant with the treatment which either has been applied or would hypothetically be applied by the person to those who have not done the relevant protected act.In the case of Collins v Sampong the Industrial Tribunal made the same error in the application of Section 2(1) of the 1976 Act which we find has been committed by the Tribunal in this case. That is a failure to focus on the key question of less favourable treatment. There is no indication in this decision that the Tribunal addressed the question whether the Council had treated Mr Fashola less favourably than they would treat a person who had not made complaints of race discrimination against them. That is a fundamental requirement of the Section. Unless we are satisfied that the Tribunal have addressed it, it must follow that an error of law in the decision makes it necessary to allow the appeal."The appellant drew our attention to passages in the extended reasons and reminded us in relation to which complaints he complained also of victimisation. He argued that the failure to make specific findings of less favourable treatment applies throughout his victimisation case and is fatal to the Industrial Tribunal's decision upon it.The Industrial Tribunal reminded itself fully of the provisions of s. 2 of the Race Relations Act 1976 . It also referred to the decision of the Court of Appeal in Aziz v Trinity Street Taxis Ltd and others [1988] IRLR 204 . We refer to passages from the judgment of Slade LJ at page 210:
"... The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act.
Applying this test, it is clear that on the facts of the present case and in the circumstances relevant for the purposes of ss.2 and 11(3)(b), TST has treated the appellant 'less favourably than in those circumstances [it] treats other persons', ie by expelling him from membership. On this point the appellant's argument is, in our judgment, well founded.However, if the appellant is to establish unlawful discrimination within s.2(1), he still has to surmount the hurdle of causation presented by the second limb of the subsection. He has to go on to show that TST so treated him by reason that the appellant had (within the meaning of s.2(1)(c) 'otherwise done anything under or by reference to this Act in relation to the discriminator or any other person'."Later, Slade LJ said:
"... in our judgment, on the true construction of s.2(1), if the necessary causal link is to be established, it must be shown that the very fact that the protected act was done by the complainant 'under or by reference to' that legislation, influenced the alleged discriminator in his unfavourable treatment of the complainant."
Whilst it appears to be a correct submission that the Industrial Tribunal did not, in its expressed reasons, go through the exercise of comparison with a hypothetical comparator who had not done a protected act (s.(2) Race Relations Act 1976 ), the stark, and, for the appellant insurmountable, fact is that the Industrial Tribunal found in each instance that the respondent's actions had nothing whatsoever to do with race. Causation was a matter for the Industrial Tribunal to determine and there is no basis upon which its findings could properly be impugned.So far as sickness reporting is concerned, the Industrial Tribunal, it is argued, misunderstood the case of victimisation and made findings in paragraph 67 of the extended reasons that were unsupported by evidence.The first part of that relates to correspondence between Ms Taylor and the appellant following his absence on 10th and 11th March 1993. We have already referred to that. In his second Originating Application the appellant said:
"On my return, the 2nd respondent threatened disciplinary action regarding my sick absence ... I discovered that the Arbitration Panel had gone ahead and met despite my request for a postponement on the grounds of my inability to attend."
The Industrial Tribunal dealt with the correspondence very fully. It made this finding:
"No evidence was before the Tribunal that any of the other staff had not complied strictly with the Council's reporting procedure. Ms Taylor did not proceed with the disciplinary action following the exchange of correspondence. She accepted that the Applicant had contacted the Respondent but did not accept that he had strictly observed procedures and reminded him of the position for the future."
In respect of both these aspects the Industrial Tribunal made perfectly clear findings that the conduct of the respondent had nothing whatever to do with race. In the last three sentences of paragraph 67 of the extended reasons the Industrial Tribunal seems to have elided pieces of evidence to produce a conclusion that is not strictly accurate in its detail. The doctor's certificate showing that it was the appellant who was ill (which we have seen) does not appear to be suggesting that the appellant was ill on 10th March. What is important, however, is the conclusion of the tribunal that Ms Taylor did not react because of a difference in race.The appellant's sixth ground of appeal related to the office accommodation proposal. It was not, he said, open to the Industrial Tribunal to find that the proposals did not discriminate against him.It was the appellant's submission that Mr Sugrue had found at the Local Officer hearing in October 1992 that the proposal was discriminatory; that the Employee Appeal Sub-Committee formally accepted the officer's conclusion on 10th February 1993; and that the Industrial Tribunal was precluded by paragraphs 41(1) of Schedule 12 of the Local Government Act 1972 from going behind that. Accordingly its finding was perverse.In that submission there is an error of fact and an error of law.We have referred to the Appeals Sub-Committee's record of Mr Sugrue's modified evidence of fact as to discrimination. The Sub-Committee acknowledged that there had been some areas for concern about the accommodation proposals and that that had been relevant to the question of mitigation of penalty. It does not seem to us that the Sub-Committee formally adopted that finding of discrimination as its own.In any event, the paragraphs of Schedule 12 of the Local Government Act 1972 relied upon relate to the admissibility in evidence without further proof of a minute of a meeting of a Local Authority (or committee or sub-committee), and do not in any way circumscribe the powers of an Industrial Tribunal to make its own findings of fact. This ground of appeal is wholly misconceived.The final ground of the main appeal relates to ss. 68(1) and 68(7) of the Race Relations Act 1976 . Those are the subsections that provide that a complaint shall be not considered by an Industrial Tribunal unless presented before the end of three months beginning when the act complained of was done; and that an act extending over a period shall be treated as a done at the end of that period.In relation to the reporting line and management team changes, the Industrial Tribunal found that they were out of time. The appellant submitted that the changes occurred on 11th March 1993 and fell within time on his second Originating Application lodged on 14th May 1993.Although, as we have related, the revised structures had been duly approved many months earlier, the appellant's case seemed to us to be two-fold.First, his 28th May 1992 grievance against Ms Taylor was of racial harassment which included the example "my reporting lines were changed without my agreement that effectively demoted me within the line structures. This was contrary to previous assurances given to me". Though that was rejected by the Mr Sugrue at the Local Officers hearing in October 1992, it remained live until determination by the Personnel Appeal Panel, or Arbitration Panel, on 10th March 1993. It was only then, the appellant submits, that his reporting line changed. In further support, the appellant pointed to Ms Taylor's letter to him of 18th March 1993:
"As I am still your line manager until the arbitration has issued their findings ..."
Secondly, the Panel considered the appellant's job description and made minor alterations to it. In fact, those alterations did not alter the reporting line changes; and the Panel recognised the earlier decisions of the Council. As to that, the Industrial Tribunal found:
"The Appeal Panel in reaching a decision on the complaint brought to them by the Applicant were constrained by the decision of the Arbitration Panel which had met in July 1990 and which had approved the Head of Support Services job description. The Panel was also satisfied that the Applicant had not been prevented from raising these issues with Ms Taylor, that he had in fact raised such issues and that they had been investigated."
The situation, therefore, was that the decision as to the changes had taken place long before. The appellant's complaint in his IT1 on 28th May 1993 that there was discrimination or victimisation by Ms Taylor in giving to the Arbitration Panel on 9th March 1993 the reasons for the change, was really a matter of her reporting long approved change.We are by no means persuaded that the Industrial Tribunal erred in holding this matter to be out of time. We note also their additional finding in paragraph 63 of the extended reasons.Next, the appellant submits that the Industrial Tribunal adopted a narrow or legalistic approach to the appellant's IT1's when considering his complaint of continuing discrimination and racial harassment. It should, he submitted, have viewed "the continuing act of discrimination" as an alternative "act complained of". The appellant reminded us of the decision of the Court of Appeal in Sougrin v Haringey Health Authority [1992] ICR 650D .In particular the appellant relied upon the 1990 report of Mr John and submitted that the Industrial Tribunal should have asked itself:(1) whether the respondents had promised to implement remedial measures following Mr John's report;(2) whether any proposed remedial measures in respect of the culture of the Directorate of Leisure Services had been implemented or left unimplemented.The appellant then referred us to Littlewoods Organisation Plc v Traynor [1993] IRLR 154 , a decision of the Employment Appeal Tribunal in which Lord Coulsfield said (at page 156):
"So long as the remedial measures which had been agreed on in November 1989 were not actually taken, the situation involving racial discrimination continued and allowing that situation to continue amounted to a continuing act. Of course, at this stage in the proceedings, the Industrial Tribunal have not decided that the employer's actions in allowing the situation to continue were, in fact, racially discriminatory or gave a good ground for complaint. We have proceeded upon the assumption that the situation which continued to prevail after November 1989 and up to the date on which the respondent's employment was terminated may be capable of amounting to a continuation of discrimination."
In our judgment, the Industrial Tribunal gave proper and adequate consideration to these questions. It had before it relevant extracts of Mr John's report which ended:
"The Council needs to give serious attention to what needs to be done to generate a culture within Leisure Services which is more consistent with its policies and to create more acceptable working environment for all staff in the Directorate."
The Industrial Tribunal also had before it the Chief Executive's letter to the appellant dated 7th September 1990 which included:
"The Director of Education made an observation about the need to change the culture within our Directorate. In connection with this you will be aware of the team building training initiative that is being launched in Leisure Services."
The Industrial Tribunal heard detailed submissions on this aspect of the case which it summarised at paragraph 17 and 44 of the extended reasons. It made these findings:"The Chief Executive confirmed that he had spoken to the then Acting Director of Leisure Services to ensure that the matters highlighted by the Director of Education in his report as giving cause for concern had been taken "on board" and will be dealt with and for the future solutions will be sought to remedy the situation." ..."The Chief Executive had fully briefed Ms Taylor as to the perceived racist culture in the Directorate on her arrival. We are satisfied that Ms Taylor made every effort to improve the morale of staff especially from the black staff within the Leisure Directorate. We believe that she was regarded with suspicion from the evidence we heard and documents and correspondence which we have seen and especially listening to the Applicant give evidence and noting the way in which he put his questions by way of cross-examination. The Tribunal find that there was systematic opposition by the Applicant and at least one other black officer in the Leisure Directorate to all attempts made by the Director to manage the Directorate effectively. The Applicant often behaved in a manner aimed at undermining Ms Taylor's authority. We are satisfied that Ms Taylor had many meetings with Head of Personnel Services and Head of the Race Relations Unit to consider "race issues" that had been raised. The Applicant made repeated allegations of racism in the Leisure Directorate and the Director had investigated and responded to each issue raised." ..."We found that there was no continuing discrimination by the Respondent Council, by Mr White, following the Gus John Report. We do not consider that there was any failure on the part of the Chief Executive Mr White to respond adequately to the matters raised in the Gus John Report." ..."Ms Taylor had joined a Directorate where a number of members had a perception of a racial culture operating there. Ms Taylor inherited many problems leftover from Mr Stewart's time a Director. The Chief Executive charged Ms Taylor to manage the Directorate and to rid it of any perceptions that decisions were racially motivated and manage it in a non-discriminatory way. To be able to manage the Department, it was necessary for the Director to gain and have respect of all staff. Discipline within the DMT was essential. There can be no criticism where there are disagreements in discussions that then take place, but the conduct about which the Respondent's complain on the part of the Applicant which occurred on 21 May 1992 was in our view quite appalling." ...
"He briefed Ms Taylor on her joining the Leisure Directorate. The Chief Executive supported Ms Taylor in the work she was doing within the Directorate."
The appellant's sought to argue before us that nothing had changed since Mr John's report. The Leisure Directorate was then and has ever since been poisoned by the culture of racism. The extended reasons make clear that the appellant conveyed that case to the Industrial Tribunal (as indeed he conveyed it to us). The extended reasons also make clear that the Industrial Tribunal gave the whole case painstaking consideration and concluded the reality to be that:
"The Applicant appeared paranoid that any decision that was made that was not as he wished or exactly to his liking was racially motivated. The Applicant could not accept any normal managerial guidance/counselling without taking offence. The Applicant displayed an arrogance before this Tribunal and that arrogance he clearly displayed in his attitude and conduct in the work place. Often this attitude unfortunately lead to fairly minor issues being blown up and escalated out of all proportion."
The Industrial Tribunal made clear findings of fact over a very considerable field of evidence. Overridingly, it found that none of the acts done by the respondent and upon which the appellant brought focus, was done on a racial ground.Throughout the detailed arguments put forward by the appellant in support of his appeal against the decision of the Industrial Tribunal to dismiss his complaints, we have heard nothing to persuade us that the Industrial Tribunal made an error of law bearing on its determination. In consequence, that appeal is dismissed.The appellant appeals also against the order for costs made subsequently. Extended reasons for the decision were sent to the parties on 30th April 1997. Those extended reasons set out the course of the very long hearing. Those are matters, together with questions of reasonableness and the conduct of the parties, which lie entirely within the knowledge and experience of the case of the Industrial Tribunal. The Industrial Tribunal also considered the emotional and practical burden on a litigant acting in person, especially in the exacting context of a race discrimination case. It considered the appellant's means.The appellant submits that the Industrial Tribunal was wrong to make an order of costs against him. He deploys detailed arguments which are in some respects repetitious of those put forward in the main appeal. We have considered them.Provisions as to costs are contained in Schedule 1, Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . That Schedule sets out Rules of Procedure:
"12.-(1) Where, in the opinion of the tribunal, a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the tribunal may make- (a) an order containing an award against that party in respect of the costs incurred by another party;
. ..(3) An order containing an award against a party ("the first party") in respect of costs incurred by another party ("the second party") shall be- ... (c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as taxed (if not otherwise agreed).. ..(6) Any costs required by an order under this rule to be taxed may be taxed in the county court according to such of the scales prescribed by the county court rules for proceedings in the county court as shall be directed by the order."Subject to the preconditions of Rule 12(1), costs are in the discretion of the Industrial Tribunal.The argument urged upon us by the appellant as to the Industrial Tribunal's jurisdiction to make the order it in fact made was, (in part), that the Industrial Tribunal had no power to order costs to be paid on an indemnity basis. Rule 12(6) provides in terms for the Industrial Tribunal to make a direction as to the County Court Scale on which costs are to be taxed, but not the basis upon which they are to be taxed. The Industrial Tribunal only has such powers as are specifically invested in it by statute.It seems to us to be probable that the Industrial Tribunal has a discretion to specify indemnity basis. But, if that is so, it leads to the further question upon what basis such discretion should be exercised.In the usual event an order for costs is likely to be (expressly or implicitly) on the standard basis. In proceedings before the Industrial Tribunal, no power to order costs arises at all unless one or other of the circumstances set out in Rule 12(1) pertains. Those circumstances are such as might, in other civil litigation, where costs more readily follow the event, justify an indemnity basis order. But where, as here, such a circumstance must be established (in the opinion of the tribunal) before any order can be made at all, it is in our judgment necessary for the tribunal to give clear reasons for departing from the more usual (standard basis) order and making an exceptional indemnity basis order.There is room for argument that the extended reasons justify an indemnity basis order. Equally, it may be said that they go no further than explaining the reason for making an order at all. We remind ourselves that this a discretionary matter for the Industrial Tribunal. But we conclude that the Industrial Tribunal did not express sufficient reasons for making costs payable on an indemnity basis. At the end of this long drawn out litigation it would be unproductive to remit the case. We are satisfied that the right order is to delete the provision for the taxation of costs to be on an indemnity basis. The appeal against the costs order will be allowed to that extent only.