MRS P JAYARATNE v (1) THE CLERK OF THE PARLIAMENTS (2) MISS LORNA MCWILLIAMS (3) MR RUPERT ELLWOOD [2001] UKEAT 195_01_2410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 195_01_2410Case No Appeal No. EAT/195/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P JAYARATNEAPPELLANT(1) THE CLERK OF THE PARLIAMENTS (2) MISS LORNA MCWILLIAMS (3) MR RUPERT ELLWOODRESPONDENT
Before
Mr Justice LindsayDate 24 October 2001
[1]APPEARANCES For the Appellant Mr W Jayaratne MR JUSTICE LINDSAY (PRESIDENT) We have before us as a preliminary hearing the appeal of Mrs P Jayaratne in Jayaratne -v- (1)The Clerk of the Parliaments, (2) Miss Lorna McWilliam (3) Mr Rupert Ellwood and this morning we have been addressed by Mr Jayaratne, the husband of the Appellant.[2]It is worth making a brief observation about the time this preliminary hearing has taken. The Employment Appeal Tribunal Practice Direction indicates that an hour should normally suffice for the hearing of a preliminary hearing of an appeal. In fact, Mr Jayaratne addressed us for some one hundred and fifteen minutes. I mention that because, undoubtedly, one of the factors that one sees beginning to have some effect in the conduct of this case below was a degree of prolixity on the part of Mr Jayaratne and Mrs Jayaratne together (because Mr Jayaratne appeared also below as representative and advocate for Mrs Jayaratne).[3]On 30 September 1999, Mrs Jayaratne presented an IT1 for racial discrimination, both direct and indirect. She was then still employed at Parliament and had been so employed since April 1989. On 2 November 1999 an IT3 was put in on behalf of the Respondents. They made the point that Mrs Jayaratne's complaints were out of time and, in any event, they said, there had been no discrimination.[4]There was then a hearing which, all told, was some ten days long or possibly went into the eleventh day at the Employment Tribunal between April 2000 and December 2000 and throughout that, as I mentioned, Mrs Jayaratne had been represented by her husband. The hearing was, in effect, split into a first tranche of three days and then a gap, and then the rest later, quite a bit later.[5]On 22 December the Decision was sent to the parties. It was the Decision of a Tribunal at London South, sitting under the Chairmanship of Mr A. Bano. He was sitting with Mr C J Vincent and Mr J Ellis. Their unanimous Decision was that the application was dismissed.[6]On 1 February of this year, there was a Notice of Appeal, some twenty pages of close typing, prepared by Mr Jayaratne on his wife's behalf, as a Notice of Appeal. We have a Skeleton Argument from Mr Jayaratne and in it many points are taken, not all of which we need to respond to. The convenient way of dealing with them perhaps is to go through the Skeleton Argument, broadly speaking, in the same order in which the points are there taken, without necessarily explaining, in full, exactly what the point is with which we are dealing, because that can be ascertained by reference, later if necessary, to the Skeleton Argument itself.[7]The submissions made there, in the twelve pages of the Skeleton Argument could broadly be divided, as it seems to us, into two things: first of all, an allegation that the Tribunal's Decision was perverse, and, secondly, that the Tribunal, and more particularly, the Chairman, was biased against Mrs Jayaratne, although it has to be said that quite often the two parts of the case merge because sometimes a conclusion which is described as perverse is said to have been come to because it is alleged that the Chairman, in particular, was biased. But we will try to follow that broad distinction between perversity on the one hand, and bias on the other. The perversity argument is seen to have something like eighteen sub-divisions.[8]Looking at paragraph C 1, there is a case raised in relation to a "Refusal to Respond to the Notice of Facts to Admit". There is a detailed machinery provided in the Employment Tribunal Rules which if used, can lead to a requirement or Order by the Tribunal that particular questions should be answered - see Employment Tribunal Rule 4(3). This was not used in this case.[9]The Tribunal did, however, suggest, as it would seem, that Mr Jayaratne should use the break that was observed between the first half of the case and the second, to raise questions of the Respondents. In fact, when the questions were put they amounted to some seventy five questions. They were not, it seems, answered, and, when the case came back in front of the Employment Tribunal, the Chairman asked the Respondents why they had not responded and their reply was that there had been seventy five questions. The Tribunal, as it seems to us, was within its power to accept as an explanation for not answering that the request had been prolix, and possibly even oppressive. We do not know precisely in what terms the Respondents indicated to the Chairman why they did not respond but the emphasis on the seventy five questions would seem to point to a complaint of prolixity or oppression.[10]The complaint of Mrs Jayaratne also is that the Tribunal failed to mention this point in the Extended Reasons but that we do not take to be an indication of perversity on the Tribunal's part. It was merely a procedural point, and not every procedural point needs to be mentioned. We certainly do not see it as any error of law on the Tribunal's part not to have explained more fully in its Extended Reasons the question of a failure to answer seventy five questions where the questions, in fact, had not been required to be answered as a matter of Tribunal order, although that could have been arranged.[11]A heading next is "Late Disclosure of Documents". If Mrs Jayaratne, or her adviser, had been dissatisfied with the production of documents then they could and should have applied to the Employment Tribunal under Employment Tribunal Rule 4, and, had the Decision of the Tribunal then not suited them, they could and should have appealed to the Employment Appeal Tribunal. We have no adequate reason to accept that a want of documents, or their late production, did indeed hamper Mrs Jayaratne's case or that such considerations reflect some perversity in the Employment Tribunal's Decision.[12]There is a complaint, number 3, about "Non-disclosure of Documents" - the documents being the wage slips of the comparator and the appraisal reports of the comparator. These were refused by a Decision of the Chairman. Some appraisal reports were, indeed, before the Employment Tribunal, those of the Applicant herself, but not, it would seem, those of the comparator. It is not easy to see why production of the wage slips themselves of the comparator were truly necessary for a decision as to racial discrimination. Mrs Jayaratne's complaint was not principally based on a comparison between her pay and the pay of that of the comparator and in any event there would be other ways of proving or disproving pay of the comparator, other than by way of production of a whole series of slips. But, leaving that apart, there was a ruling against the production of the wage slips and appraisal reports and there was no appeal to the Employment Appeal Tribunal, as there should have been, had the Applicants below wished to keep alive an ability to complain on the subject.[13]Heading number 4 is headed "Fragmented Approach" and is a reference to Qureshi -v- Manchester University . The EAT has held in other cases since that it is easy to misunderstand or misapply Qureshi . Qureshi does not say that it is wrong to look at separate incidents separately; of course they have to be looked at. If they are not looked at then it would be likely to be a complaint to the Employment Appeal Tribunal that it had failed in its duties by failing to make findings on particular separate issues. What Qureshi makes clear, though, is that it is not enough merely to look at separate incidents separately; it is authority for the proposition that it is appropriate for a Tribunal, having looked at separate incidents separately, then to stand back and to see the evidence in the round, to look at the totality of the evidence.[14]Here, in its paragraph 17, it seems to us that the Tribunal did do exactly what Qureshi required it to do. Having set out at length, the findings which it made, in paragraph 17, headed "Conclusions", the Tribunal said:
"On the basis of the above findings of fact, we conclude that the Respondents did not treat the Applicant less favourably than they treated or would have treated other persons on the grounds of the Applicant's colour, race, nationality or ethnic or national origins."
And they go on with further conclusions. They were, as it seems to us, doing exactly what Qureshi required them to do, namely, having looked at matters separately, they were then standing back and assessing matters as a whole.[15]The next heading, number 5, is called "Work During Sick Leave" and it is a complaint that Mrs Jayaratne had been brought to work by taxis while she was on certified medical leave. The Employment Tribunal had this point in front of them and they said this:
"Although it is not disputed that telephone calls were made to the Applicant while she was on sick leave and that work was faxed to her home during such periods, we are satisfied that that action was taken by Miss McWilliam at the Applicant's request in order to provide the Applicant with a distraction from her personal problem. We are also satisfied that the Respondents provided the Applicant with taxis to take her to and from work when she was suffering from pain in her knees for the same reason."
It seems to us that that is a matter which the Tribunal was able to conclude, in the sense that they cannot be said to have had no evidence from which such a conclusion could be drawn. The comment made in the Skeleton Argument is that we should respond by saying "My goodness, that was certainly wrong", but we have nothing to show that the Employment Tribunal's view was not one which could be formed on the evidence before them.[16]Heading 6, is as to the Applicant, Mrs Jayaratne, the Appellant before us, having behaved "out of character" on a particular incident. There was an occasion when she called the Third Respondent, Mr Ellwood, a racist and there was a complaint about that in the Skeleton Argument. But there was no necessity for the Employment Tribunal to find as a fact whether Mrs Jayaratne had on this occasion herself been offensive. That there was no finding on the point goes nowhere to make a case of perversity. "The Chairman has omitted the whole incident" says the Skeleton Argument, as he was biased. So it is said, but it seems to us that it is no indication of perversity; the Tribunal had no need to make a finding as to whether or not Mrs Jayaratne had been offensive.[17]An important heading, number 7, concerned the finding of the Tribunal that there had been a close relationship between Mrs Jayaratne and Miss McWilliam. It is said that the conclusion of the Tribunal was perverse and contrary to the evidence. The Tribunal said:
"It is also not disputed that the Applicant and Miss McWilliam enjoyed a close personal relationship and it is apparent that the Applicant herself asked to work in the same offices as Miss McWilliam and Mr Ellwood after the formation of the new Banqueting Department, even though much of the work she did was unconnected with catering for functions."
We have no reason to suppose that there was no evidence at all to support that view. The Employment Tribunal heard full evidence in this area. It has to be borne in mind that quite often, on a given topic, the Employment Tribunal will hear some evidence that points one way, and some evidence that points another. It is for them to do their best to decide on rational grounds which evidence they choose to prefer. As long as there is some evidence for the conclusion to which they come, it is no indication of an error of law to say that there was evidence on which they could have concluded differently.[18]The next heading is called "Full time work". The Tribunal found that notwithstanding that Mrs Jayaratne was not, nominally at any rate, a full time worker, she sometimes worked up to 60 hours a week. One of her claims was that she was denied full-time work, but it was specifically held by the Employment Tribunal that in recent times (recent to the IT1 which she had lodged) she had not asked for it, and it had not been understood that she had asked for it. The Tribunal said:
"We are satisfied that the Respondents reduced the Applicant's working hours to 13.9 per week and that, although the Applicant thereafter did request an increase in her hours, she never specifically requested full time working. The assertion in the Applicant's amended Originating Application that she frequently asked for full time work is inconsistent with her answer in cross-examination that the Respondents did not know that she wanted full time work after her hours were reduced to 13.9 per week."
And a little later:- "In her comments on the Applicant's appraisal report in June 1997, Miss McWilliam stated that it would be an asset if the Applicant were able to return to her former hours in the next reporting year. Miss McWilliam stated in evidence that there would have been no objection to the Applicant being employed on a full time basis if the Respondents had known that that was what she wanted. There is no written evidence of any request by the Applicant for full time work, and we have come to the conclusion that the Applicant only came to believe that she should have been given full time work, after the appointment of Carole Hunt" who was the comparator, and who was given a full time job.[19]The fact that in 1989, some ten years or so before, Mrs Jayaratne had said in writing that she wished to be considered for full time vacancies, should any arise, does not disprove the Employment Tribunal's conclusion as to the events of so many years afterwards. The comment is made in the Skeleton Argument that the assertion that there was no written evidence of any request by the Applicant for full time work is also disproved, by way of her application to work in a quite different department. The Employment Tribunal heard evidence from Miss McWilliam and from the Applicant below on the subject and manifestly believed that if it had been known that she wanted a full time job then there would have been no objection to her having one. That, as it seems to us, takes all the sting out of the point.[20]Next there is a heading about "Training". It is quite plain that the subject of training can, in some cases, be relevant to racial discrimination if a complaint is that the complainant was treated less favourably than her comparator in relation to training. So it is not good enough simply to look at the Applicant's training, one has to look at training as a comparative issue. The Employment Tribunal received evidence that Mrs Jayaratne did indeed receive training relative to her job. They said this:
"We accept the evidence of Siu Lee and we are satisfied that she taught the Applicant how to create documents, amend text and carry out basic word processing functions such as underlining and converting text into italics using the Word Perfect 5.1 word processing system. We are satisfied that Siu Lee had contact with the Applicant virtually every day for two or three months. Although it appears that one external course arranged for the Applicant did not meet her specific needs, we are satisfied that on the introduction of the Word word processing system the Applicant attended both introductory and advanced training courses and was given the support which she needed to convert Word Perfect files into Word files."
We have no reason to believe that, on that evidence being accepted, the Tribunal could necessarily conclude only that the Applicant was treated less favourably (still less, less favourably on the grounds of race) than her comparator.[21]Paragraph 10 is headed:
"The recruitment of the comparator, transfer of duties"
. It says:
"In spite of the fact that the Tribunal stating that the A [Mrs Jayaratne] was 'fobbed off' and that there was 'no Equal Opportunity Policy', this was omitted from the Chairman's Extended Reasons as he was biased."
The remark about being "fobbed off" was a remark made by a lay member during the hearing. It was not a conclusion of the Tribunal. Indeed, in context it would seem to be that it was the lay member's summing up of his understanding of what the case being put by Mr Jayaratne at the time was. It cannot be described as a finding of the Employment Tribunal.[22]As to there being "no Equal Opportunity Policy", that seems not to have been in dispute and so one, perhaps, would not necessarily expect there to be a finding on the subject. There is no reason, however, to believe that the Tribunal were not aware that there was no equal opportunity policy, or that they did not have it in mind. In a case with as many sub-issues as this, it would be quite unreasonable to expect express findings on every single topic, even those where there had been little or no dispute.[23]Next we have a paragraph of the Skeleton, number 11, called "Would fit in" and it is the case that Miss McWilliam said of the comparator that she thought that she would "fit in". Now it is quite plain that remarks of that kind can be explained as being indications of race discrimination or sex discrimination; quite often, that sort of discrimination hides behind a remark of that kind. But it has to be borne in mind that an employee can fit in or not fit in, on grounds other than race. The Tribunal was perfectly alive to the point; they mentioned it. In their paragraph 11 they say:
"Miss McWilliam said in cross examination that Carole Hunt had been selected for appointment because Miss McWilliam thought that she would "fit in." " and that is in a paragraph that begins with the words: "
Mr Jayaratne also pointed to a number of features of Miss McWilliam's evidence as indicating a racist attitude on her part." So they were thoroughly alive to the fact that it was being said that Miss McWilliam's remark about Carole Hunt fitting in was being said to be an indication that hid or manifested racial discrimination; so they recognised the possibility. But then, in paragraph 14 the Tribunal says this:
"…..we cannot accept the case now put forward by the Applicant, that Miss McWilliam subjected her to detriment on the grounds of her race in the period prior to the appointment of Carole Hunt. We are satisfied that Miss McWilliam did go out of her way to treat the Applicant sympathetically and to support her for compassionate reasons, and we consider that the Applicant's attempt to portray the Respondents' treatment of her during that period as hostile and racially motivated calls into question her reliability as a witness of fact and as an accurate judge of the reasons for other peoples' actions towards her. On the other hand, we considered Miss McWilliam to be a principled and open witness and we were impressed by the fact that she readily admitted incidents which might be expected to show her in a poor light in the context of a discrimination claim."
We do not see that that is a conclusion which the Tribunal could not have arrived at and they plainly had it in mind that the remark about "fitting in" could, indeed, be an indication of racial prejudice or discrimination, but that on the facts they found that not to be so.[24]Then on much the same sort of topic, in number 12, we have a heading "Chairman's version instead of the actual evidence/Offensive Comments". There were a series of remarks that suggested, so Mr Jayaratne argued below, that Miss McWilliam was prejudiced on racial grounds.[25]There was reference to the Refreshment Department at the House of Lords as being an "Indian restaurant" and, alternatively, it might be that what was said was that the House of Lords was being turned into a "curry house" as several Asian Peers joined the House, and such remarks manifestly indicated a tendency towards racial prejudice on the part of Miss McWilliam. But the Tribunal had those remarks in mind. They do not quote all of them and it is said that in some respects, they do not quote them accurately. But that they were aware of a series of remarks tending to show racial prejudice as a disposition of Miss McWilliam is quite plain. However, one does not necessarily prove racial prejudice against A by showing that the person in question is racially prejudiced against B, C and D. Notwithstanding that the Tribunal was aware of a disposition on Miss McWilliam's part of that kind, they specifically hold, as we have seen, that she was not racially prejudiced with respect to Mrs Jayaratne. That is a conclusion that was possible to come to without error of law. We emphasise that we can only hear errors of law.[26]At number 13, we have a heading "Office Seating Arrangements". I will not explain it as fully as the Skeleton Argument does; the point is, perhaps, towards the petty end of any spectrum of the matters that the Tribunal had before it, but the Tribunal did know that it had it before it; it actually spoke of the issue.

(e) :

"The Applicant contends that her desk in the office which she shared with Rupert Ellwood and Carole Hunt was placed facing a wall, whereas Mrs Hunt's desk was placed so that it would be the first port of call for visitors to the office. The Respondents contend that the furniture was placed in the office in the only arrangement which would allow the Applicant enough space to do her work."
The Tribunal, having heard the evidence, concluded:
"………we are satisfied that the amount of desk space required by the Applicant to do her work made it convenient that her desk should face the wall. We are satisfied that at no time was the seating arranged in order to "marginalise" the Applicant or to make her less visible to visitors in the office."
We have no reason to believe that that was not a permissible option on the evidence as the Tribunal heard it.[27]Heading 14 was "Equal Opportunity Meeting" and the complaint is that Miss McWilliam:
" did not furnish an explanation as to her non-attendance at the 1997 Equal Opportunity Meeting held at the House of Lords"
It is a little short of absurd, it seems to us, to rely upon a person's failure to attend a meeting in 1997 as some indication of conscious or unconscious racial bias against Mrs Jayaratne at a considerable later period. It must be remembered that it was specifically held that Miss McWilliam treated Mrs Jayaratne sympathetically. We really see no arguable error of law whatsoever in that part of the case.[28]Then at 15, it said that:
"The Chairman did not "grasp the nettle"
. As an allegation it is so vague that it is rather hard to focus on it as an error of law, but, as we see it, the Tribunal did rule upon that which it had to rule on. It ruled upon the issue of racial discrimination and inference in relation to racial discrimination. It had some ten days of material before it. It had the Respondents' explanations and, broadly speaking, it accepted them. It was entitled to do so. One cannot say that it was bound not to accept the Respondent's explanations.[29]Heading 16 is "Staff Adviser's 1993 and 1998 Reports". It is said that there is a difference in styles between the two reports and that the latter one of 1998 was:
"prejudicial, tendentious and devoid of even a rudimentary analysis."
And it was that latter report of 1998 that led to the recruitment of the comparator. It is not, of course, the case that either of the reports was about Mrs Jayaratne. There is a limit to the number of points which it is reasonable to expect a Tribunal expressly to make findings about. This, as it seems to us, is not a point on which an express provision needed to be made by the Employment Tribunal when it came to find its facts.[30]There is a heading next, 17:
"Misapplication of facts"
. The complaint there is the finding that Mrs Jayaratne does not appear to have perceived herself to have been the victim of race discrimination at any time prior to July 1999. It seems to us it is a material point, perhaps a very material point, that, down to a late date, Mrs Jayaratne had made no complaints to her employers about racial discrimination suffered in her post. That cannot be said to be immaterial. It is said that she herself perceived that she was being racially discriminated against, but failed to complain, but that does not really assist her. The fact that she herself perceived herself to be racially discriminated against, but still did not complain, militates, if anything, against her rather than in her favour,[31]There are a number of sub-paragraph headings under that broad "Misapplication of facts" heading in paragraph 17. We will not deal with each, but there is a finding at 17.4 about the Second Respondent awarding Mrs Jayaratne with Box 2 markings, which are thought to be good things to have on her Annual Appraisal Reports. Miss McWilliam gave evidence on this subject as far as we can see. She certainly gave evidence generally, and was cross-examined at some length. The Tribunal had the appraisal reports before them; we cannot assume merely on an assertion that the evidence did not permit the conclusion at which the Employment Tribunal arrived.[32]Heading 18 - and this seems to be the last in the broad category of perversity - is headed "Internal Grievance Procedure". The Tribunal said:
"Grievance Procedure. We accept Mr Embleton's evidence on this issue. We are satisfied that Mr Embleton carried out a genuine investigation into the Applicant's complaints and genuinely and reasonably reached the conclusion that the Applicant had not been the victim of race discrimination."
So they had the point thoroughly in front of them and they accepted the evidence of Mr Embleton. It is said that a fragmented approach was taken here, but really that is not a fair criticism. The internal grievance procedure and the complaint about it was, so to speak, a fragment in itself; it was a separate issue and was dealt with as a separate issue. As we have already seen, in our view, at the end of the case, when they came to make a conclusion, the Tribunal did indeed stand back and look at matters adequately in the round.[33]In the last part of paragraph 18 of the Skeleton, Mr Jayaratne says:
"The decision of the Tribunal was one that no reasonable Tribunal could have reached and was perverse."
Well, it is well recognised here that it is never an easy task for an Appellant to succeed on a perversity argument, but, doing the best we can, we see no arguable error of law such as to enable us to hold that this Tribunal was perverse in its conclusion. We see, in other words, that its conclusion was, so to speak, a permissible option.[34]Then, turning to the second broad heading of the case, Mr Jayaratne heads it "Credibility" and indeed, sub-heads it "Credibility of the Chairman". At this point and thereafter, the concentration is largely upon bias on the part of the Chairman, in particular. But, on a number of sub-headings, the point really is that it is said that only a biased Chairman would have decided on the evidence as this Chairman did. That is a paraphrase of the nature of some of the complaints. Of course, the conclusions as to credibility were not the conclusions only of the Chairman, but of the whole Tribunal. Credibility is very much a matter for the Tribunal as a whole; we have already cited a passage as to credibility of Miss McWilliam and of Mrs Jayaratne. We might add this of Mr Ellwood, where the Tribunal said:
"We also regarded Mr Ellwood as an entirely straightforward witness and, although the events of this case have clearly subjected him to very considerable strain, we considered his evidence wholly credible. For these reasons, we have preferred the evidence of Miss McWilliam and Mr Ellwood to that of the Applicant in those areas where their evidence is in conflict in relation to events both before and after the appointment of Carole Hunt."
[35]And then they go on to say that they also accepted the evidence of Mr Embleton. It is, of course, not an error of law for the Tribunal to have preferred one body of evidence to that of another. In his paragraph 19.5 in his Skeleton, Mr Jayaratne says:
"We have proved the perjured, inconsistent, responses/evidence of the Respondents."
We cannot agree. We have seen no arguable case that would fit that description.[36]Then, as another aspect of misconduct on the part of the Chairman, we have a heading:
"Unfairness during the hearing - Interventions and Interruptions."
. The case, as we mentioned, took ten days. That in itself is hardly an indication of anyone being unfairly hurried. The Chairman was asked to comment on the affidavit that had been made on behalf of Mr and Mrs Jayaratne and he said:
"The case was originally listed to take three days. It was not completed within that time and, at Mr Jayaratne's request , I allocated a further 10 days to complete the case." and a little later, he says: "
In the event it was possible to complete the case after eight days of the 10 day period" So there was no particular reason to hurry, and the length of time taken is consistent, at any rate, with a full opportunity being given to all parties to put their case. Over ten days one could reasonably expect there to be some interventions by a Chairman, in particular, to keep Mr Jayaratne and Mrs Jayaratne's side, who were not professionally represented, within ordinary bounds. That Mr Jayaratne tends to prolixity, is plain from the affidavit that was sworn on 20 March of this year, and, to a lesser extent, even by the length of time taken on this preliminary hearing.[37]We have read the remaining parts of paragraph 20 of the Skeleton Argument. We do not think it necessary to go through each, but there is an allegation about seating arrangements made during the hearing at the Employment Tribunal. It is said that the Chairman himself was untruthful. We have looked at the Chairman's explanations; we cannot accept that the changes which were made prejudiced the Applicants or were made with a view to the prejudice of the Applicants below and we see nothing in that point.[38]The point also is made, notwithstanding that there was a very long affidavit from the Applicant as to misconduct or bias or prejudice on the part of the Chairman, that the Chairman's response was only short. It has to be remembered that an Employment Tribunal's decision is to be judged by the extended reasons and there is a limited role for comment by Chairmen - for example when their personal conduct is brought into play - but it is quite common for the Chairman's response to be relatively short because, otherwise, he will find himself wrongly seeking to add to the reasons given in the extended reasons.[39]Paragraph 23, towards the end of the Skeleton Argument, says that the Applicant firmly believes that:
" the Chairman was biased towards the Respondents as they are House of Lords employees and he did not wish to taint the name of House of Lords with the stigma of racism"
. When asked about that, Mr Jayaratne says:
"we have our own reasons for supposing that"
. Well, we cannot usefully take that further forward.[40]There is lastly reference to the Human Rights Act and that the biased conduct of the Chairman led to an unfair trial. Well, we have seen no evidence of that, and, indeed, the nature of the Extended Reasons, extending as they are over some eleven pages of close typing, seem to us to represent a conscientious effort on the part of the Employment Tribunal fully to set out the findings of fact and the conclusions.[41]So much for the Skeleton Argument and what we have heard orally from Mr Jayaratne on his wife's behalf. It may be said in the light of Anya -v- University of Oxford that the Extended Reasons show no awareness that the credibility of witnesses alone provides no necessarily sufficient answer where, as in racial discrimination cases, unconscious motivation may be a possibility. However, there is no indication that such a point was taken below, and I should add that we have the closing written submissions that Mr Jayaratne put to the Tribunal below. Thus, its not being a point that was taken below, it could not, in any event, be developed here and it was not mentioned at all here.[42]Doing the best we can with the very long reasons that Mr Jayaratne has advanced on his wife's behalf, we find no arguable error of law and must therefore dismiss the appeal, even at this preliminary stage.