LONDON BOROUGH OF HILLINGDON v MR L MEEK [2003] UKEAT 0422_03_0312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0422_03_0312Case No Appeal No. UKEAT/0422/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF HILLINGDONAPPELLANTMR L MEEKRESPONDENT
Before
His Honour Judge D SerotaDate 3 December 2003
[1]APPEARANCES For the Appellant MR PAUL GREATOREX (of Counsel) Instructed by: London Borough of Hillingdon Legal Services Civic Centre High Street Uxbridge Middx UB8 1UW For the Respondent MR R C DAVIS (Solicitor) Messrs K E Davis & Sons Solicitors Warley Chambers Warley Road Hayes Middx UB4 0PU HIS HONOUR JUDGE D SEROTA QC Introduction We shall refer to the parties respectively as "Hillingdon" and "Mr Meek".[2]Hillingdon appeals from a decision of the Employment Tribunal at Watford (N Mahoney Esq. Chairman). The Decision (which was registered on 17 March 2003 after a five-day hearing) was to the effect that Hillingdon had discriminated against Mr Meek on the grounds of sex and awarded him compensation in the sum of £5,989.50, together with interests and costs assessed in the sum of £2,322.42. The Employment Tribunal dismissed Mr Meek's complaint of discrimination on the grounds of race.[3]Mr Meek cross-appeals against the dismissal of his complaint of discrimination on the grounds of race. At one time it was suggested by Hillingdon that this cross-appeal was out of time and that contrary to an order of the Employment Appeal Tribunal no application had been made for directions. In the event Hillingdon did not press the point and we have dealt with the cross-appeal on its merits.[4]Mr Meek has also sought to raise, by way of cross-appeal, a complaint that the Employment Tribunal should have had regard to events of alleged discrimination occurring after Mr Meek's employment had come to an end. In this regard Mr Meek wished to rely upon the recent decision of the House of Lords in Relaxion Group Plc v Rhys-Harper [2003] UKHL 33 . It is said that the allegations in the Originating Application are sufficiently wide to justify an appeal on this basis. Mr Meek wishes to rely upon the manner in which his appeal hearing was conducted; the appeal hearing took place after his dismissal had taken effect. It is accepted that this point was never raised before the Employment Tribunal.[5]At the date of the hearing the Employment Tribunal considered it was bound by the decision in Post Office v Adeyke [1997] ICR 110 to the effect that matters occurring after the dismissal could not form the basis of a complaint of discrimination on the grounds of sex or race. The point was neither argued nor reserved before the Employment Tribunal. In those circumstances we declined to entertain the cross-appeal relating to alleged acts of discrimination that had occurred after the dismissal. Factual Background[6]Mr Meek is a white male. He commenced employment with Hillingdon in 1994 as an Accounts Clerk working at Hillingdon Civic Centre in the Housing Finance Department.[7]In early 2002 complaints were received by Hillingdon from another local authority about pornographic emails that originated from Hillingdon's Environmental Services Department. The Environmental Services Department is in the same building as the Housing Finance Department but is a separate department. An investigation was conducted by Mr Williams who reported to a disciplining officer, Ms Palmer.[8]Six members of the Environmental Services Department were investigated and disciplined including Ms Amanda Gordon, a black woman, who had been exchanging pornographic emails with Mr Meek. The six persons included two white males, one Chinese female, one black male and Ms Gordon, who was, as we have said, a black female. Four of the six received final written warnings. None were dismissed and two received lesser penalties.[9]The investigation into pornographic emails originating from the Environmental Services Department led to the discovery that Mr Meek had exchanged pornographic emails with Ms Gordon. An investigation was carried out by Mr Ola Ajala, a black male and the head of Housing Finance. The disciplining officer was Dorothy West, a white female, the Assistant Director responsible for the Business, Planning and Support Services Division.[10]The investigation revealed that in the period between 4 and 17 January 2002 Mr Meek had received or sent 362 emails, of which only 14 related to his work. The majority of the other emails were sent to Ms Gordon, who sent many to Mr Meek. We need not set out the details of these emails, but it is sufficient to note that the Employment Tribunal considered them to be pornographic and offensive. A number of the images passing between Ms Gordon and Mr Meek were considered by Mr Ajala and by the Employment Tribunal to be "hardcore pornography".[11]Hillingdon had a disciplinary procedure. The policy for the purpose of the procedure (as set out in the disciplinary procedure) included the following:
"The aim of this procedure is to ensure that all employees are treated fairly and consistently and that any disciplinary action taken is a result of a fair and reasonable decision. Formal disciplinary action can only take place as a result of a disciplinary hearing. The same standards of conduct and behaviour are applicable to managers, employees and staff acting as trade union representatives."
[12]Ms Howard was one of Hillingdon's Personnel Officers. Despite the clear terms of the disciplinary policy we have set out, she advised Mrs West that she could only deal with the case on the basis of the evidence produced by Mr Ajala and that she was not entitled to consider what had happened in the other disciplinary cases, in particular the case of Ms Gordon, in the Environmental Services Department.[13]The Employment Tribunal was, in our opinion quite correctly, most critical of the conduct of both Ms Howard and Mrs West. Ms Howard's advice was described as "grossly negligent for a professional personnel officer". Mrs West was described as having sufficient seniority and intelligence to realise that Ms Howard's advice was clearly wrong. The Employment Tribunal considered that she should have made further enquiries of Ms Howard's superiors in the Personnel Department. Be that as it may, the Employment Tribunal were satisfied that Mrs West did not know that Amanda Gordon was black.[14]Mr Meek was represented by a trade union representative, Mr Stone. Mr Stone and Mr Ajala knew that Ms Gordon was black. Mr Meek, of course, knew that she was black and also knew that she had been given a two-year final warning; and he assumed that at the worst he would receive a similar penalty. However, at the disciplinary hearing that took place on 18 April 2002 Mrs West found that Mr Meek was in breach of the disciplinary code in three respects, two of which constituted gross misconduct. She considered Mr Meek's mitigation and concluded that he should be dismissed. He was dismissed on four weeks notice. The decision to dismiss Mr Meek was subsequently upheld on appeal. The Decision of the Employment Tribunal[15]We have already noted that the Employment Tribunal considered Ms Howard's advice to Mrs West to be grossly negligent. We have also recorded that Ms Howard knew that Ms Gordon was black and knew of the circumstances relating to disciplinary hearings at the Environmental Health Department.[16]The Employment Tribunal found that Mr Meek was never warned he might be dismissed but was under the impression that a two-year final written warning was the likely penalty to be imposed. However, the Employment Tribunal concluded "the decision of Mrs West to dismiss the Applicant was totally justified. The Applicant admitted in evidence that it was totally justified". The Employment Tribunal also concluded that Amanda Gordon should have been dismissed.[17]Hillingdon sought to justify the difference in treatment between Mr Meek and Ms Gordon by asserting that Ms Gordon had been contrite but Mr Meek had not. The Employment Tribunal found that that aspect of the case had been "exaggerated out of all proportion by the Respondent's witnesses, particularly Mrs West and Ms Lockley."[18]The Employment Tribunal found that the matter was given exaggerated importance when Ms Lockley appreciated "the terrible blunder that Mrs West had made in not referring to the decision in the Ms Gordon case and in order to justify the decision by Ms Lockley to dismiss the appeal made by the Applicant."[19]The Employment Tribunal went so far as to disbelieve Ms Lockley's evidence and at paragraph 4 (xxxii) concluded: 4 (xxxii) "…she had no genuine belief there was a difference in relation to the contrition shown between the Applicant and Ms Gordon. This was an invented reason by Ms Lockley to justify the terrible blunder made by Mrs West and Ms Howard."[20]The case for Mr Meek was that Ms Gordon was an appropriate comparator. Hillingdon denied this was so and submitted, inter alia , that the Employment Tribunal should consider as comparators the other individuals disciplined at the Environmental Services Department. The Employment Tribunal recorded this submission at paragraphs 2 (ii) and 4 (i) of its decision.[21]The Employment Tribunal directed itself by reference to sections 1 and 4 of the Race Relations Act 1976 and section 1, 5 (3), 6 (2) and section 63A of the Sex Discrimination Act 1975 . It also referred to the well-known cases of Zafar v Glasgow City Council [1998] IRLR 36 , King v Great Britain China Centre [1991] IRLR 513 , Anya v University of Oxford [2001] ICR 847 and Qureshi v Victoria University of Manchester [2001] ICR 863 .[22]We would interpolate at this stage that section 63A of the Sex Discrimination Act 1975 (relating to burden of proof) codified rather than altered the pre-existing position:
"It seems to me tolerably clear that the effect of section 63A was to codify rather than alter the pre-existing position established by the case law. The burden of proving indirect discrimination under the 1975 Act was…always on the complainant, and there pursuant to section 63A it remains, the complainant still having to prove facts from which the Tribunal could conclude that he or she has been unlawfully discriminated against "in the absence of an adequate explanation" from the employer. Unless and until the complainant establishes that the condition in question has had a disproportionate adverse impact upon his/her sex the Tribunal could not in my judgment, even without explanation from the employer, conclude that he or she has been unlawfully discriminated against."
See Simon Brown LJ in Nelson v Carillion Services Ltd [2003] EWCA 544, paragraph 26.[23]The Employment Tribunal concluded that no distinction was to be drawn between the conduct of Mr Meek and Ms Gordon: 8 "The simple fact is that Amanda Gordon should have been dismissed. The Applicant was dismissed. That amounts to less favourable treatment so far as the Tribunal is concerned and the Respondent has failed to establish on the balance of probabilities that that less favourable treatment was not on the grounds of the Applicant's sex. Indeed the Tribunal is quite satisfied on the balance of probabilities that that difference of treatment was on the grounds of the Applicant's sex." The complaint of discrimination on the grounds of race was dealt with in this way:
"The Tribunal further concludes that there was no discrimination against the Applicant on the grounds of his race because Dorothy West did not know that Amanda Gordon was black."
[24]On the question of costs the Employment Tribunal found as follows: 14 "The Applicant has engaged his representative on a no win no fee basis. The costs that he will have to pay his representative will be 33% of the total sum of compensation, namely £1976.53 together with VAT of £345.89, a .total of £2322.42. 15 The conclusion of the Tribunal in respect of an award of costs under rule 14 of the Employment Tribunals Rules of Procedure 2001 is that it is appropriate for an award to be made. The Tribunal has then considered the correct amount and feels it appropriate that the amount should be the sum which the Applicant will have to pay to his representative namely £2322.42 so that he keeps all the compensation he has been awarded by the Tribunal. The Tribunal comes to that conclusion on the following basis namely:-(1) The costs threat contained in the Respondent's letter dated 20 .December 2002 should never have been made and constitutes unreasonable conduct by the Respondent.(2) The Respondent failed to inform the Applicant prior to the hearing (as it should have done) that a vital piece of evidence to be put forward to the Tribunal was that Mrs West did not know that Amanda Gordon was black.(3) It is wrong in principle that the Applicant should suffer because of the incompetent advice given by the Respondent's Kim Howard to Mrs West.(4) The Tribunal considered Mrs West's conduct to have been unprofessional. It is the Tribunal's view that it would have obvious to anybody of any competence that the treatment of Amanda Gordon was a highly material factor to be considered in the case of the Applicant under the Respondent's Equal Opportunities Policy. Mrs West cannot absolve herself from responsibility by relying entirely on the incompetent advice of the Human Resources Department-(5) The Tribunal have considerable criticisms of the way this matter has been handled by Ms Lockley. She has not approached this matter in a proper way and her evidence has been rejected on material points as being quite implausible. The Employment Tribunal made an award of costs in favour of Mr Meek in the sum of £2,322.42. Hillingdon's Submissions Discrimination on the grounds of sex[25]Hillingdon attacked, principally, the decision of the Employment Tribunal to treat Ms Gordon as an appropriate comparator. It was submitted that as Mrs West had no knowledge of her case it was impossible to find discriminatory treatment by her for which Hillingdon might be liable.[26]Paragraphs 5 to 9 of the Notice of Appeal are as follows: 5 "The Tribunal's decision was based solely upon the fact that Amanda Gordon, a black female employed [by] the Respondent in another department (Environment), had committed what the Tribunal found to be materially similar misconduct but had only received a final written warning. 6 The Respondent contends that the decision of the Tribunal was plain wrong and/or perverse because there was no evidence that Mrs West had any knowledge of Amanda Gordon's case, her disciplinary proceedings or the sanction she received. Such a finding would be an essential prerequisite for a finding of discrimination: a manager plainly cannot discriminate against an employee by imposing a harsher sanction than another if she has no knowledge of that other case or the sanction imposed. 7 Mrs West made clear in her decision to dismiss the Applicant (and on appeal) and before the Tribunal that she had no knowledge of the cases of Amanda Gordon or the other individuals in the Environmental Services Department. The Respondent submitted in closing that if the Tribunal accepted this evidence, the Applicant's claim must fail. 8 Not only was there no finding that Mrs West was in fact aware of the Environmental Services Department cases, the Tribunal made positive findings which heightened the perversity of such its conclusion:(1) the decision of Mrs West to dismiss the Applicant was totally justified (paragraph 4 (xxviii);(2) Mrs West made no inquiry as to what happened to Ms Gordon (para. 4 (xxiii);(3) the Tribunal's fierce criticism of the Respondent was clearly based on Mrs West's Ignorance of Amanda Gordon's case (see paras. 4 (xxiii), 4 (xxix) and 15 (4);(4) there could have been no race discrimination because Mrs West did not know that Ms Gordon was black (para. 8). 9 It is contended that this short point is sufficient to undermine the whole of the Tribunal's decision."[27]Mr Greatorex drew to our attention the fact that the union representative who represented Ms Gordon (Mr Stone) also represented Mr Meek in the disciplinary proceedings, did not raise before Mrs West any matters relating to the way in which Ms Gordon had been treated.[28]Mr Greatorex relied in particular upon the recent decision of Elias J in The Law Society v Bahl [2003] EAT. He drew attention to paragraph 91 of the decision in which Elias J cited the speech of Lord Scott in MacDonald v Advocate General for Scotland [2003] UKHL 34 : 91 "The basic concepts inherent in the concept of unlawful discrimination are not difficult to state; the difficulties which tribunals regularly have is with their application. It is trite but true that the starting point of all tribunals is that they must remember that they are concerned with rooting out certain forms of discriminatory treatment. If they forget that fundamental fact, then they are likely to slip into error. The point was made by Lord Scott in the case of MacDonald v Advocate General for Scotland [2003] UKHL 34 , when he said this:
"These two appeals demonstrate the importance, in my opinion, when dealing with complaints under the 1975 Act and the other anti-discrimination Acts, of keeping in mind that they are intended to combat discrimination. They are anti-discrimination statutes. Absent discrimination, objectionable conduct by employers must be countered by other means than complaints under these Acts"."
[29]Mr Greatorex submitted that the Employment Tribunal which referred to Hillingdon's "terrible blunder" at paragraphs 3 (xxix) and (xxxiii); and that that this suggests the Employment Tribunal was not concerned so much with discriminatory conduct as with the "terrible blunder". Mr Greatorex submitted that the Employment Tribunal found that the decision to dismiss Mr Meek was totally justified. Accordingly, he submitted, that the Employment Tribunal should have had very cogent evidence before inferring that Mrs West was guilty of unlawful discrimination. He relied upon paragraph 99 of the decision in Bahl : 99 "That is not to say that the fact that an employer has acted unreasonably is of no relevance whatsoever. The fundamental question is why the alleged discriminator acted as he did. If what he does is reasonable then the reason is likely to be non-discriminatory. In general a person has good non-discriminatory reasons for doing what is reasonable. This is not inevitably so since sometimes there is a choice between a range of reasonable conduct and it is of course logically possible the discriminator might take the less favourable option for someone who is say black or a female and the more favourable for someone who is white or male. But the tribunal would need to have very cogent evidence before inferring that someone who has acted in a reasonable way is guilty of unlawful discrimination."[30]Mr Greatorex to support his submission that Ms Gordon was an inappropriate comparator because Mrs West knew nothing of her case and did not know that she was black, relied upon paragraphs 185 to 189 of the decision in Bahl: 185 "The tribunal drew an adverse inference against Mr Sayer in connection with his failure to raise the complaints of bullying informally with Dr Bahl in part by relying upon the treatment of one John Young. It set out the potential relevance of John Young's position early in its decision. Putting the matter very briefly, he was nominated to become Deputy Vice-President but subsequent to that concerns were expressed about the fact that he had something of a reputation as a man with a "roving eye". There was concern that he had made certain improper advances towards a number of females. None of the individuals involved wished to make a formal complaint. He was given a firm warning but not requested to withdraw as nominated Deputy Vice President. He had expressed regret and indicted a determination that his conduct should not give rise to any further causes for concern. There was in fact a further incident where an allegation of inappropriate behaviour was made but that was denied by John Young. Subsequently, at a woman lawyer's conference on 8 April 1995, the then President (not Mr Sayer) was asked about steps which the Law Society had in place to deal with sexual harassment by council members. He indicted that there had been investigations but the matter had been resolved. However, it was plain that Mr Young's identity would become known and accordingly he retired from the Council and withdrew from the election of President, although completing his period of office as Vice President. It was this incident that gave rise to the creation of the Dignity at Work Policy. 186 The tribunal put considerable weight on the fact that the difficulties of Mr Young with members of staff had been dealt with in an informal way, whereas the complaints about Dr. Bahl had been dealt with formally under the Dignity Policy. In particular, the tribunal considered that Mr Sayer ought to have approached her and sought to deal with the matter informally following the meeting he held with her at the end of August. The tribunal said this:
"We also took into account the way in which Robert Sayer treated Kamlesh Bahl in the way in which John Young was treated. The comparison was restricted to two specific aspects. The informal raising of allegations with the office holder and the conduct of the relevant Council meetings." 187 The appellants submit the treatment of John Young as a relevant comparator is wholly misguided. The treatment of Mr Young could be material only if Mr Sayer had personally been involved in the decision how to treat Mr Young. In fact it is common ground that he was not involved at all. He was, it is true, a Council member and attended a meeting when Council received a report about the steps that had been taken with regard to Mr Young. That does not in any way make him a party to the conduct at that time. Mr De Mello saw the force of this observation but submitted that nonetheless the tribunal was entitled to have regard to the treatment of Mr Young as a factor in determining the inferences which could be drawn against Mr Sayer. 188 In our view, the treatment by other people of Mr Young in different circumstances could be of no relevance whatsoever in assessing whether the conduct of Mr Sayer was discriminatory. One hardly needs an authority for this self-evident proposition, although the judgment of Lord Browne Wilkinson in the Zafar case supports it, as do the opinions of Lords Scott and Rodger in the Shamoon case. In the latter Lord Rodger observed (para.146): "
The tribunal's decision is vitiated by two fundamental errors. First, it overlooked the fact that Superintendent Laird had no authority over the two male chief inspectors who were in different regions. So, if they continued to do assessments, this was not because of any decision which Superintendent Laird had taken to allow them to do so. He did nothing in relation to them - he did not "treat" them at all. For that reason, it was not open to the tribunal to find in terms of article 3(1) (a) that Superintendent Laird treated the appellant less favourably than he treated the two male chief inspectors." Lord Scott made a similar analysis; see para.112. 189 It is immaterial that the Law Society was ultimately responsible for the treatment of both Mr Young and Dr Bahl. Their liability is purely vicarious. They can only be liable if Mr Sayer is liable. Past conduct can only have evidential relevance if it involved treatment meted out by him; it is only in those circumstances that it can be relied upon to show that he was treating Dr Bahl differently than he would have treated a white male. The point is a short one: it is not possible to infer that A has discriminated against B because of treatment which C has meted out to D."[31]Mr Greatorex submitted that as Elias J had made clear, liability for discrimination in this case was essentially vicarious. The Employment Tribunal could not infer that Hillingdon (through Mrs West) had discriminated against Mr Meek because of the way that Hillingdon (through its officers) meted out treatment to those in the Environmental Services Department. This, he submitted, was a question not of authority but of common sense.[32]Mr Greatorex went on to submit that an Employment Tribunal should not draw the inference that simply because Mr Meek was a white male he had been discriminated against on the grounds of his sex and colour. Mr Greatorex supported this submission by reference to paragraph 94 of the decision in Bahl : 94 "The reason for this principle is easy to understand. Employers often act unreasonably, as the volume of unfair dismissal cases demonstrates. Indeed, it is the human condition that we all at times act foolishly, inconsiderately, unsympathetically and selfishly and in other ways which we regret with hindsight. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman then it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination, it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory considerations. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made. The inference cannot be drawn from the fact that other employers sometimes discriminate in such circumstances; it cannot be inferred that A discriminates merely because B, C and D have been known to do so in similar circumstances. That is a plainly deficient basis for inferring discrimination. It would be wholly unjust to make a finding of such serious import on such a flawed basis. Nor does it help to say that it is a finding which is open to a tribunal but which it is not obliged to make. It is unjustifiable to make it in any circumstances. Two Court of Appeal decisions, Marks and Spencer plc v Martins [1998] ICR 1005 and Effa v Alexandra Healthcare NHS Trust (unrep). CA, 5 November 1999) provide examples of tribunals having confused unreasonable with discriminatory treatment."[33]Mr Greatorex drew attention to the fact that the Employment Tribunal recorded his submission that it should consider the other persons disciplined in the Environmental Services Department, but failed to do so. Ms Gordon was one of a group of mixed race and gender who were all treated in the same way (even though Mrs West did not know this). If, she did know how all members of the group were treated, how would it be possible to suggest that she discriminated against Mr Meek on the grounds of his sex when other males were treated as Ms Gordon was?[34]It was conceded that Mr Meek was entitled to select his comparator (see Ainsworth v Glass Tubes and Components ), nevertheless, the employer was entitled to rely on other comparators. The approach of the Employment Tribunal was blinkered in that it ignored other comparators and concentrated on one only who suited the Applicant's case, namely a black female. The Employment Tribunal could just as well have concentrated on a white male who was treated in the same way as Ms Gordon.[35]Mr Greatorex submitted that Mr Meek failed to prove facts from which an inference of discrimination could properly be drawn. Mr Meek was unable to show that Mrs West knew of how Ms Gordon had been treated. Further, there was an adequate explanation put forward by Hillingdon which explained the reason for the difference in treatment. This was "the terrible blunder" as Mrs West knew nothing about the Environmental Services investigation and penalties. That was the explanation for the difference in treatment. Mr Greatorex was sufficiently realistic to concede that Mr Meek would have had a strong case for claiming he had been unfairly dismissed.[36]It was submitted that if Mrs West knew how all six persons in the Environmental Services Department had been treated it would be impossible to draw an inference that she had discriminated against Mr Meek on the grounds of his sex. It would only be if she knew of how Ms Gordon alone had been treated and then chose to treat Mr Meek more severely, that it could be shown she was acting in a discriminatory manner. This shows the artificiality of the argument accepted by the Employment Tribunal.[37]Finally in regard to this aspect of the case Mr Greatorex points out that the Employment Tribunal in paragraph 8 of its decision (which we have referred to) gives no explanation as to why it found that Mr Meek was treated differently on the grounds of his sex. Submissions as to Costs[38]Mr Greatorex firstly submitted that an Employment Tribunal can only make an award of costs under Rule 14 if the conduct of the proceedings is unreasonable. He informed us that the application started as a partial application for costs but that the Employment Tribunal chose to make a full award. He submitted that an Employment Tribunal should only make a full award of costs in circumstances where it was wholly unreasonable for an employer to defend at all.[39]Grounds 3 and 4 were conceded by Mr Meek as being inappropriate to found an application for costs as they were not concerned with the conduct of the proceedings. Mr Greatorex submitted that Ground 1 (the costs threat) was not a reason. The letter was not a bullying letter and solicitors acting for Hillingdon were facing a claim they believed to be misconceived; they had to meet the objection, were they to seek costs in due course, that they had not put Mr Meek on notice. Further, the object of an award of costs is to compensate a party in respect of unreasonable conduct by the other party, not to punish that other party.[40]In relation to Ground 2 (failure to inform Mr Meek that Mrs West did not know that Amanda Gordon was black) was also unsustainable. This fact was apparent from the dismissal letters, witness statement and the appeal statement. Mr Greatorex conceded that Ground 5 (which includes the rejection of Ms Lockley's evidence) may be the kind of conduct that in certain circumstances could justify an award of costs. Ms Lockley's participation related to the appeal after Mr Meek's dismissal. It was conceded that where a witness has been dishonest, this may lead to additional costs; but no such finding was made in the present case. Mr Meek's Submissions Discrimination on the grounds of sex[41]Mr Davis, who appeared on behalf of Mr Meek, submitted that the Employment Tribunal should have found that Mrs West knew what happened in the disciplinary proceedings in the Environmental Services Department. He submitted she must have known from Ms Howard whether Mrs Palmer of the Personnel Department had a broad overview of all disciplinary cases concerning computer and telephone misuse and had given explanations to Mrs Lockley who conducted the appeal. This point, as it seems to us, is unarguable because the Employment Tribunal made findings of fact upon evidence it received and there is nothing, in our opinion, to suggest that its findings in relation to Mrs Smith are perverse.[42]Mr Davis then submitted that a distinction was to be drawn between employees of Hillingdon and Hillingdon itself. He accepted that Elias J in the Bahl case came to a contrary view; but he submitted that his reasoning should not be followed. In Mr Davis' submission the question of vicarious liability was never in issue in the Employment Tribunal making the case distinguishable to Bahl . Elias J did not, in the passage at paragraph 189 (which we have referred to), take account of the case where A and C are subject to control at the same employer. Everyone concerned in this case was employed by Hillingdon and its overarching Human Resources Department. Mr Davis submitted it would be wrong for Hillingdon to escape liability simply because of the way it had structured its disciplinary hierarchy. The Employment Tribunal should have taken a robust and purposive approach and in part they did so.[43]Mr Davis submitted that as the Employment Tribunal found it was for Mr Meek to select an appropriate comparator and he selected Ms Gordon. Her conduct was similar. He did not agree that the Employment Tribunal should have taken account of what happened to others in the group of six members of the Environmental Services Department who were disciplined.[44]If Mrs West had known what had happened in the Environmental Services Department disciplinary proceedings she would have had to explain why she was treating Mr Meek differently; we interpolate here that that may be so. It would be clear that her explanation could not have been based on grounds of race or sex.[45]Mr Davis then submitted that the treatment that was meted out by Hillingdon by reason of a chain of knowledge through Mrs West to Ms Palmer and down to the panel that dealt with other cases, rendered Hillingdon liable as fixed with the relevant knowledge. Mrs West acted as an emanation of Hillingdon, so the fact that she did not know what had happened in the Environmental Services Department cases was irrelevant.[46]Mr Davis urged us to take a robust view of the purposes of the equal opportunities legislation, as did the Employment Tribunal. Here there was evidence of difference of treatment and it was for the employer to show that it was not on the grounds of race or sex. Mr Davis drew our attention to the case of Barton v Investec . We have already referred to the decision of the Court of Appeal in Nelson v Carillion Services . We followed the dictum of Simon Brown LJ (which we have set out). Cross Appeal; Discrimination on the grounds of race[47]Mr Davis' submissions were succinct. The Employment Tribunal found that Mrs West had discriminated against Mr Meek on the grounds of his sex. The Tribunal must have found she knew of the circumstances of Ms Gordon or that she was imputed to have the knowledge of her superiors or that Hillingdon was to be imputed with that knowledge. It is accordingly illogical for the Employment Tribunal to find that there was discrimination on the grounds of sex but not on the grounds of race. Costs[48]Mr Davis conceded that Grounds 3 and 4 by the Employment Tribunal were not sustainable. However, he submitted that the costs threat (Ground 1) was a matter of significance. He submitted that Employment Tribunals are sensitive to cost threats which have led some applicants to withdraw. He informed us that some Tribunals, when a complaint is withdrawn, make enquiries to ascertain whether this is as a result of a costs threat. So far as the second ground is concerned (failure to inform the Applicant of Mrs West's evidence that she did not know that Amanda Gordon was black), this was a most important piece of evidence and the Employment Tribunal was entitled to have regard of this matter and its decision was not perverse. So far as Ground 5 was concerned, Mr Davis submitted that the Employment Tribunal rejected her evidence and it was therefore justified in its conclusion that it was appropriate to make an award of costs.[49]Finally, Mr Davis submitted that there was nothing in Rule 14 of the Employment Tribunals Rules of Procedure 2001 that made any connection between costs and the conduct complained of. If it was intended that only those costs arising from unreasonable behaviour might be awarded the Rules would have said so, as they do, for example, by reference to Rule 14 (4) dealing with the costs of an adjournment. Conclusions Discrimination on the grounds of sex[50]We prefer the submissions of Mr Greatorex. In our opinion Ms Gordon was clearly not an appropriate comparator. It is wrong to have viewed Ms Gordon in isolation from the group of five other members of the Environmental Services Department who were disciplined, four of whom were all dealt with in the same way, for similar wrong-doing, regardless of their gender or ethnicity. One might just as easily have had taken one of the two white males as a comparator.[51]It is quite clear that Mr Meek was treated differently to members of the Environmental Services Department, but once one sees that the same treatment was meted out to four individuals of different sex and ethnicity it becomes impossible to say that Mr Meek was treated differently, or suffered discrimination as the result of either his gender or his race .[52]The Employment Tribunal recorded Hillingdon's submissions in this regard at paragraphs 2 (ii) and 4 (i) but failed to deal with the submission in its decision. The submission seems to us to have been manifestly correct.[53]We also follow the judgment of Elias J in Bahl . Ms Gordon was not an appropriate comparator because she had not been disciplined by Mrs West and Mrs West had no knowledge of the circumstances for those of the other persons disciplined in the Environmental Services Department.[54]In our opinion, as in the case of Bahl , Hillingdon as the employer, on the facts of this particular case, could only be liable for discrimination (on the grounds of either sex or race) because it would be vicariously liable for the acts of Mrs West. This is not a case of what might be regarded as "corporate" discrimination or a case where Mr Meek suffered discrimination as a result of a deliberate policy of failure to act on the part of Hillingdon.[55]We repeat what Elias J had to say at paragraph 189: 189 It is immaterial that the Law Society was ultimately responsible for the treatment of both Mr Young and Dr Bahl. Their liability is purely vicarious. They can only be liable if Mr Sayer is liable. Past conduct can only have evidential relevance if it involved treatment meted out by him; it is only in those circumstances that it can be relied upon to show that he was treating Dr Bahl differently than he would have treated a white male. The point is a short one: it is not possible to infer that A has discriminated against B because of treatment which C has meted out to D."[56]In our opinion Hillingdon cannot be liable for Mrs West's treatment of Mr Meek by reference to treatment meted out to the six members of the Environmental Services Department by Ms Palmer.[57]We conclude, therefore, that Ms Gordon was an inappropriate comparator, both because Mrs West had not been responsible for disciplinary proceedings related to Ms Gordon and her colleagues, and was not aware of the circumstances, and also because Ms Gordon was one of a group of persons of mixed gender and ethnicity dealt with in the same way.[58]The fact that Mr Meek was dealt with more severely that Ms Gordon and others (even though the Employment Tribunal found that Ms Gordon had been dealt with with undue leniency) is not the basis for a claim of discrimination. It may well be that Hillingdon's conduct rendered Mr Meek's dismissal unfair. Mr Meek, however, made no such application, and certainly no such application is before us. Discrimination on the grounds of race[59]The cross-appeal must be dismissed. As we have concluded, there was no basis upon which the Employment Tribunal can have found Hillingdon liable for discrimination on the grounds of sex, there can equally be no basis for a finding that it was liable for discrimination on the grounds of race. Costs[60]Again we accept Mr Greatorex's submissions. A number of grounds relied upon by the Employment Tribunal are clearly unsupportable. While we recognise that the Employment Tribunal was entitled to have regard to the fact it found Ms Lockley's evidence to be implausible, the award to Mr Meek of all his costs was quite disproportionate and appeared to us to be designed to punish Hillingdon rather than compensate Mr Meek.[61]In our opinion the award of costs cannot be supported. We have considerable doubts as to whether Hillingdon's conduct in sending the costs warning could be regarded as unreasonable conduct. Assuming that it was unreasonable conduct, in our opinion it would not justify the order for costs that was made. It clearly had no impact whatever on the proceedings as it did not discourage Mr Meek from continuing to prosecute them.[62]We also do not accept on the facts that it was unreasonable for Hillingdon, to fail specifically to warn Mr Meek that Mrs West's evidence would be that she did not know Amanda Gordon was black. This evidence was clearly known at all times to Mr Meek as it was raised in evidence by Mrs West in the appeal proceedings; see Mrs West's management case statement of 13 May 2002 at pages 66 and 67 of our bundle. General[63]Before concluding our judgment we wish to make it clear that we associate ourselves with criticisms made by the Employment Tribunal as to the conduct of Hillingdon. It is difficult to understand how Ms Howard ever came to give advice to Mrs West that was so far out of line with proper employment practice and so contrary to Hillingdon's disciplinary procedures. We repeat that had Mr Meek sought to make an application on the grounds of unfair dismissal such application might have had a good chance of success. Time[64]We did not hear submissions on the point raised by Mr Greatorex in his Skeleton Argument that the cross-appeal was brought outside the 42-day time limit for appeals provided by the EAT Rules 3 (3) which provide that an appeal must be lodged within 42 days from the date that Extended Reasons are sent to the parties. However, Rule 6 allows a cross-appeal to be presented after service of the Notice of Appeal on a Respondent.[65]At one time there might be a delay in service of a Notice of Appeal on a Respondent until after a preliminary hearing had been held. The EAT procedure has, of course, now been changed radically by the recent Practice Direction. Paragraphs 9 and 10 require that any cross-appeal must be lodged within 14 days from service of the Notice of Appeal and also require a Respondent to apply for directions. The effect of the Practice Direction and of the "sift" procedure is to ensure that cross-appeals are lodged more quickly than was the previous practice.[66]We also refer to the recent decision of the Employment Appeal Tribunal (Burton P) in Asda Stores v Thompson which made clear that an independent appeal, by a Respondent, as opposed to a cross-appeal, must be lodged within the 42-day period.