MRS MAXINE NIXON v GMB & OTHERS [2003] UKEAT 0598_03_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0598_03_1811Case No Appeal No. UKEAT/0598/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS MAXINE NIXONAPPELLANTGMB & OTHERSRESPONDENT
Before
Mr Justice Rimer Mr B Beynon Mr J MallenderDate 18 November 2003
[1]APPEARANCES For the Appellant MR M SUTTON (of Counsel) Instructed by: Messrs Morgan Cole Solicitors Buxton Court 3 West Way Oxford 0X2 0SZ For the Respondent MS S MACHIN (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Square Albert Square Manchester M2 4ER THE HONOURABLE MR JUSTICE RIMER This is an appeal by Mrs Maxine Nixon, who appears by Mr Sutton, against the decision of an Employment Tribunal sitting at Manchester over several days between February and May 2003 and chaired by Mr M E Coles. The tribunal's extended reasons were sent to the parties on 5 June. The result was that the tribunal recorded that Mrs Nixon had withdrawn one limb of her claims (which the tribunal then dismissed), had succeeded in a claim of victimisation against three of the respondents in respect of a single incident at the Tickled Trout Hotel on 6 September 2001, but had failed on all her other complaints, which were also dismissed. Mrs Nixon's appeal is against the dismissal of those other complaints. The respondents are GMB Union ("GMB"), Paul Hoggarth, Gary Jones, Alan Hughes and Mel Beaumont, which and who all appear by Ms Machin. The Tribunal's Decision[2]We summarise as follows the tribunal's findings of fact and conclusions, although they are less than fully comprehensive and so our summary is in part supplemented by additional and, we believe, non-controversial background information, in part by reference to the documents before us.[3]Mrs Nixon has been employed by GMB since 1998. She has held the position of Senior Organiser in the Lancashire region since 1997. She has presented a total of three complaints to the tribunal, although this appeal is only concerned with the decisions on her second and third complaints. Mrs Nixon's second complaint was presented on 15 February 2001 and was for alleged sex discrimination contrary to the Sex Discrimination Act 1975 ("the SDA "). Her third complaint was presented on 5 December 2001, and was one by which she alleged sex discrimination, victimisation under section 4 of the SDA and subjection to detriments after making a protected disclosure under section 47B of the Employment Rights Act 1996 .[4]The tribunal recorded in its reasons that Mr Sutton, who also appeared for Mrs Nixon before the tribunal, made plain to it that her primary complaint against GMB and the other four respondents was for discrimination by victimisation under section 4 of the SDA . Since that section is at the heart of this appeal we will set out its material provisions now: 4 " Discrimination by way of victimisation(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act…., or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act…, or (c) otherwise done anything under or by reference to this Act…in relation to the discriminator or any other person, or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act… or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."[5]Reverting to the story, during 1997 Mrs Nixon stood for election to the position of Regional Secretary for the Lancashire region of GMB. Mr Jones was a competing candidate and was elected to the post. Mrs Nixon considered that the selection procedure was discriminatory on grounds of sex and on 12 February 1998 she presented her first complaint against GMB to the tribunal. That complaint was brought under section 6 (1) (a) of the SDA and related to the procedures and for the selection and appointment of the Regional Secretary.[6]In March 1998, within a month of the presentation of that complaint, Mrs Nixon's responsibilities for race and equality were removed from her and Ms Giovana Holt was appointed in her place. The tribunal found that in May 1998 Mr Jones uttered certain oral warnings to Ms Holt, which we need not repeat, being words which it found, indicated Mr Jones' disapproval of inter alia Mrs Nixon's presentation of her complaint to the tribunal, which was a protected act within section 4 (1) (a) of the SDA .[7]Mrs Nixon's 1998 application came on for hearing in January 1999 and following the giving of evidence (including evidence from Ms Hilda Ball, a fellow GMB member, whom Mrs Nixon called as a witness) but before the hearing was concluded the parties entered into a consent order. It was dated 13 January 1999. GMB made no admission in it that it had discriminated against Mrs Nixon but it acknowledged that the procedures adopted for the appointment of the Regional Secretary were unsatisfactory. Paragraph 4 of the order recorded that: 4 "The Regional Secretary furthermore gives the applicant an assurance that she will not be victimised by having brought this case." The tribunal found that this assurance represented an acknowledgement by Mr Jones that he would "watch his step" to ensure that he did not victimise Mrs Nixon for having brought the 1998 proceedings.[8]In 1999, a complaint was also presented to the tribunal by Ms Hilda Ball. She had been expelled from GMB and dismissed from her position for alleged "breaches of rule". She alleged unfair dismissal, victimisation and sex discrimination and made allegations against Mr Jones, Mr Hughes and Mr Beaumont. The hearing of her application took place between 6 and 10 December 1999. Ms Ball called Mrs Nixon as a witness and she gave evidence. The tribunal's extended reasons were promulgated on 20 January 2000. It upheld Ms Ball's complaint, including for victimisation, and found that Mr Jones, Mr Hughes and Mr Beaumont had all lied to it. It found that one of the reasons for Ms Ball's dismissal was that she had given evidence in Mrs Nixon's earlier case.[9]Mrs Nixon subsequently presented her two further applications to the tribunal. The first was presented on 15 February 2001. The sole respondent to it was GMB. In her details of her complaint Mrs Nixon set out the bones of the history which we have summarised and alleged that after the settlement of her first claim there had been a "perceptible change" in the way she had been treated by Mr Jones in comparison with other GMB officials. She catalogued her allegations in a separate document. She asserted that "she felt" that Mr Jones particularly resented the fact that she had given evidence in Ms Ball's application. She alleged that she was distressed by a letter from Mr Jones of 13 July 2000 informing her that her duties would be changed from 7 August, a matter about which there had been no prior consultation. She alleged that the letter had affected her so much that she visited her doctor who gave her a sick note. She said she carried on working until 19 July 2000, about which time she learned that four Branch Secretaries had arranged what she alleges was a secret meeting without her knowledge. She said that they had all been involved in the complaints raised by her first application to the tribunal. She alleged that "it later transpired that no meeting had been sanctioned by Mr Jones. As a result of these actions I broke down and went off sick with work-related stress and anxiety." She said that she returned to work on 22 January 2001 and raised a number of grievances in a letter of that date to Mr Jones. She alleged that at a meeting on 31 January 2001 the regional president and Mr Hughes made personalised attacks on her. She claimed "that the campaign of harassment against me commencing in late 1999 is a continuing act of discrimination and victimisation arising out of my previous complaint of sex discrimination against [GMB] and that [GMB] is vicariously liable for the acts of these individuals about whom I have complained."[10]By its IT3 GMB dealt with the various allegations raised by Mrs Nixon and denied that there had been any element of discrimination against or victimisation of her. It dealt specifically, in a document of some eight pages, with the catalogue of incidents on which Mrs Nixon particularly relied.[11]Mrs Nixon's third complaint to the tribunal was presented on 5 December 2001. This time she joined as respondents not just GMB but also Mr Jones, Mr Hoggarth, Mr Hughes and Mr Beaumont. In her grounds of claim she summarised the history down to the issue of her second claim. She explained that Mr Hughes and Mr Beaumont were powerful Branch Secretaries in Area 3, of which she was the Senior Organiser, and that they were both strong supporters of Mr Jones and had been instrumental in GMB's defence to her first complaint to the tribunal back in 1998. She said that her latest claim was concerned with acts of victimisation and subjection to detrimental treatment by specific individuals from 31 January 2001 to date, culminating in the Tickled Trout Hotel incident on 6 September 2001. She claimed that, since the lodging of her second complaint, Mr Jones and also the other individual respondents had continued the campaign of victimisation, harassment and detrimental treatment. She explained her grounds of complaint over some nine pages.[12]The respondents' IT3 resisted the claims and explained their grounds of resistance over some eighteen pages.[13]The hearings of both Mrs Nixon's second and third complaints took place before the tribunal between 10 February and 2 May 2003. We are told that there were some eight days of oral evidence. At the hearing Mr Sutton directed heavy criticism at Mr Jones, Mr Hughes and Mr Beaumont, who were again accused of having victimised Mrs Nixon. He suggested that they had not only lied when giving evidence in 1999, they had lied again in denying that they had victimised Mrs Nixon. The tribunal tempered its approach to that criticism by saying this in paragraphs 25 to 27: 25 "…persons who take on a full-time occupation with the Union do not generally do so purely as a "career move". There is invariably a "dedication to the cause" and the position is generally regarded as a "vocation" as much as a job. The individuals concerned have strong political beliefs and these are reflected in their attitude towards their job and the manner in which they believe the Union should become involved in issues of human concern for the members of the Union and political activitism generally. 26 There is a strongly held feeling of dedication and loyalty and, to use an expression of one of the witnesses, "love" for the Union by many of its officers. The perception that an individual employee or employees within the Union may be acting in a manner which is contrary to its interests, damaging to its integrity or cohesion or potentially showing the Union in a "bad light" is something which, in the eyes of some officials within the Union, amounts to no less than "treachery". 27 It is clear to the Tribunal that the personally named respondents in this case all had a very strong view that any disputes between individuals within the Union or between officers and the Union itself should be capable of being resolved by internal procedures without "washing dirty linen in public". The Tribunal can understand, if not necessarily agree with, the view which it believes the four personally named respondents held that any officer which takes the Union to a Court or Tribunal is not acting in the interests of the "brotherhood and sisterhood of the Union" and is causing damage to it both internally and in the eyes of the "watching public" and, of course, other Unions with which there is frequently a, normally healthy, rivalry."[14]Whilst acknowledging that the four individual respondents had been found to have lied in Ms Ball's case, the tribunal said it did not necessarily follow that they were also lying in Mrs Nixon's case or that they had victimised her. It pointed out that the provisions in section 4 of the SDA are directed to protecting employees who have done a protected act within the meaning of section 4 (1). It does not mean that the employer or individual within the employer organisation has to retain affection of admiration for the protected person for what he or she has done. What they must do is not treat such an individual less favourably than they would treat other persons in similar situations who have not done a protected act. The tribunal went on to say that few people who choose careers as union officers are wilting violets. It found that Mr Jones' style of performance in his role as Regional Secretary was "firm but fair", adding that firmness can be interpreted by others, particularly if they are the object of it, as harassment or victimisation. It also found that Mr Hughes and Mr Beaumont were regarded as "tough" full-time Branch Secretaries, adding that "no doubt their local members respected them for it". The tribunal found that Mrs Nixon is an intelligent, respected, competent person, dedicated to GMB and to her role as Senior Organiser, but they also found that she could be abrasive and was capable of giving "as good as she got" in the altercations that can arise with colleagues. The tribunal said that: 34 "…There is, however, no reason why colleagues such as the four personal respondents in this case should adopt a submissive approach to her just in case they are accused of victimisation."[15]The tribunal identified several incidents which Mrs Nixon alleged amounted to victimisation of her. The tribunal described them in paragraph 36 in the following, somewhat general, terms:(a) "Gary Jones interfering in an investigation by [Mrs Nixon] into an incident in Blackpool in March 2000 involving Ms Sandra Blight where sexual harassment was alleged;(b) Gary Jones changing [Mrs Nixon's] area with no apparent proper explanation or consultation in July 2000;(c) Mel Beaumont and Alan Hughes being involved in a "secret meeting" in Bolton in July 2000;(d) Mel Beaumont and Alan Hughes acting in an aggressive manner towards [Mrs Nixon] in a meeting on 31 January 2001 following [her] return from sickness absence;(e) General "sidelining" and "marginalising" by Gary Jones in relation to duties which were properly within her remit." In the same paragraph the tribunal added this:
"Significant importance was also placed by Mr Sutton on the discussion within the Regional Committee following the Hilda Ball case. It is said that words to the following effect were used: "
We've tried it Charles' (i.e. the solicitor's) way – now we'll do it Gary's (or as one witness put it, Gazza's) way." Did that indicate a determination to victimise or discriminate against the applicant as Mr Sutton suggests?"[16]In paragraph 35 the tribunal then directed itself as to the law applicable to a victimisation claim. It said as follows: 35 "It is not possible, in the view of the Tribunal, to be guilty of discrimination under Section 4 of the Act unintentionally. In the case of Aziz v Trinity Street Taxis Ltd & Others [1988] ICR 534 it was held that a causal link between the protected act or acts and the less favourable treatment has to be established and it has to be shown that the act "influenced" the alleged discriminatory [sic] in his or her unfavourable treatment of the complainant. Less favourable treatment, if it exists, can be motivated by factors unconnected with the protected act or acts, even though the motivation is in some other way improper. The case of Nagarajan v London Regional Transport [1998] IRLR 73 held that "conscious motivation" i.e. being at the "forefront of the mind" is not necessary but the causal connection must nevertheless be established."[17]We comment that the tribunal's reference to the Nagarajan case was to the decision of the Court of Appeal, to which the tribunal was not referred. The tribunal made no reference in that paragraph or anywhere else to the decision of Nagarajan in the House of Lords, to which it was referred.[18]Having so directed itself as to the applicable law, the tribunal found, first, that the "Gazza" remark did not amount to evidence either of victimisation of or discrimination against Mrs Nixon. The tribunal said that it could:
"…simply have been an expression of frustration at losing a case where the respondent had , in their view, "played it by the book" and that perhaps in future, where similar situations arose, they should "grasp the nettle" earlier and take action as the Regional Secretary thinks appropriate."
[19]As for the other alleged incidents that the tribunal had listed in paragraph 35, it expressed its conclusions on them in two paragraphs as follows: 37 "The Tribunal carefully considered the evidence in relation to all of the incidents referred to above and other matters raised by or on behalf of [Mrs Nixon]. It has to be satisfied, even if necessary by drawing inferences, that the actions of each of the respondents in what they did was "by reason" of the acknowledged protected acts done by [Mrs Nixon]. In each of the incidents relied upon, there was at the very least a plausible explanation advanced for the actions of the respondents, including in some instances a reaction to [Mrs Nixon's] behaviour and attitude itself. Furthermore, by way of example, the allegation that [Mrs Nixon] was victimised by Gary Jones when he changed her area in July 2000, upon which [Mrs Nixon] relied heavily as an example of victimisation, did not to the Tribunal make sense where there is an alleged conspiracy between Mr Beaumont, Mr Hughes and Mr Jones to transfer [Mrs Nixon] into their region when they had no particular desire for her to be there and there was the risk of losing membership (which would affect their income) by removing a longstanding and respected Senior Organiser and replacing him with someone who they did not think would perform work duties as well. The explanations given were not only plausible but, in the Tribunal's unanimous view, believable. 38 For all the above reasons, the Tribunal was not satisfied on the evidence given to it that [Mrs Nixon] has been treated less favourably by any of the respondents by reason of the fact that she had done a protected act or acts, subject to the matter which is dealt with below."[20]That matter was the Tickled Trout Hotel incident. That was an occasion on 6 September 2001 at the Tickled Trout Hotel in Preston, at which there was a meeting to discuss regional matters. Mrs Nixon was there, as were Mr Hoggarth, Mr Jones and others. The tribunal found as a fact, in paragraph 40, that Mr Hoggarth "went on effectively to 'castigate' [Mrs Nixon] for having brought a second complaint of discrimination to the Tribunal". It also found that Mr Jones not only did nothing to moderate Mr Hoggarth's attack, he uttered words which impliedly supported it. The tribunal found that Mrs Nixon was upset by the incident, which it also found was a not insignificant one. It concluded that both Mr Hoggarth and Mr Jones were guilty of victimisation of Mrs Nixon, contrary to section 4 (1) of the SDA and that GMB was jointly liable with them under section 41 (1).[21]All three respondents made a cross-appeal against that decision; but today Ms Machin informed us that they wished to withdraw it and we have therefore dismissed it.[22]We come, therefore, to Mrs Nixon's appeal. Mr Sutton submits, first, that the tribunal misdirected itself in paragraph 35 of its reasons as to the requirement of "intention" in a victimisation complaint under the SDA . We comment that it is perhaps not entirely easy to reconcile the first and last sentences of paragraph 35; but we approach the tribunal's reasons on the basis that it was the statement it made in the first sentence which carried the most weight with it, and Mr Sutton's submission was quite simply that this sentence involved a fundamental misdirection. He submitted that it is contrary both to the guidance to be found in the decisions of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572 and, more recently, in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 . Mr Sutton acknowledges that the alleged victimiser must be aware of the protected act or acts relied upon, but submits that it is not necessary for him then to form any conscious or deliberate intention to treat the complainant less favourably in consequence. He says that the knowledge of the protected act can operate upon the victimiser unconsciously and so influence his actions.[23]The language of section 4 shows that, in order for the alleged discriminatory acts to amount to victimisation within the meaning of that section, the act must have been performed by the discriminator "by reason that" the person victimised has done a protected act. As to what that means in practice, Mr Sutton referred us in particular to the speech of Lord Nicholls of Birkenhead in Nagarajan . That was a race discrimination case, concerned with sections 1 and 2 of the Race Relations Act 1976 ; but the language of those sections is, in material respects, identical to that of sections 1 and 4 of the SDA and it is not in dispute that the guidance given in that case is equally applicable to the correct interpretation of section 4.[24]In paragraphs 13 to 17 of his speech Lord Nicholls considered the test which has to be satisfied in proving discrimination contrary to section 1 of the RRA and made clear that it is not necessary to prove any conscious intention to discriminate. In paragraphs 17 and 18 he said this: 17 "I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn. Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of s.1 (1) (a). The employer treated the complainant less favourably on racial grounds. Such conduct also falls within the purpose of the legislation. Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination. Balcombe LJ adverted to an instance of this in West Midlands Passenger Transport Executive v Singh [1988] IRLR 186, 188. He said that a high rate of failure to achieve promotion by members of a particular racial group may indicate that 'the real reason for refusal is a conscious or unconscious racial attitude which involves stereotyped assumptions' about members of the group. 18 Thus far I have been considering the position under s.1 (1) (a). I can see no reason to apply a different approach to s.2. 'On [racial] grounds' in s.1 (1) (a) and 'by reason that' in s.2 (1) are interchangeable expressions in this context. The key question under s.2 is the same as under s.1 (1) (a): why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under s.1 (1) (a) are correspondingly appropriate under s.2. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts ('protected acts') listed in s.2 (1), the case falls within the section. It does so, even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act. In so far as the dictum in Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 at 211,59 ('a motive which is consciously connected with the race relations legislation') suggests otherwise, it cannot be taken as a correct statement of the law. The Aziz case, it should be noted, antedates the decisions in R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 and James v Eastleigh Borough Council [1990] IRLR 288 . Although victimisation has a ring of conscious targeting, this is an insufficient basis for excluding cases of unrecognised prejudice from the scope of s.2. Such an exclusion would partially undermine the protection s.2 seeks to give those who have sought to rely on the Act or been involved in the operation of the Act in other ways.[25]Accordingly, Lord Nicholls disapproved of the Aziz dictum insofar as it suggested that it is necessary to show a motive on the part of the discriminator which is consciously connected with the race relations legislation. It was of course from Aziz that the tribunal drew part of its guidance in paragraph 35 of its decision.[26]Lord Steyn's speech in the Nagarajan case was in line with the approach adopted by Lord Nicholls. We would refer in particular to paragraphs 41 and 42, and in the latter paragraph Lord Steyn in terms expressed his disagreement with the dictum in Aziz insofar as it emphasised the underlying motivation of the alleged discriminator rather than the immediate cause of the unfavourable treatment. Lords Hutton and Hobhouse agreed with Lords Nicholls and Steyn. Lord Browne-Wilkinson delivered a dissenting speech.[27]Khan , to which Mr Sutton also referred us, was also a race discrimination case. In paragraph 29 of his speech Lord Nicholls again reverted to the sense to be attached to the phrase "by reason that" in section 2 of the RRA 1976 and mirrored in section 4 of the SDA . He said of it: 29 "Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the "operative" cause, or the "effective" cause. Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport …a causation exercise of this type is not required either by section l (l) (a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."[28]In her submissions on behalf of the respondents Ms Machin did not seek to defend the manner in which the tribunal directed itself as to the law in paragraph 35 of its reasons. She acknowledged that the dictum in Aziz is no longer a reliable guide to the interpretation of section 4 of the SDA and that the observations in Nagarajan and Khan to which we have referred provide clear guidance showing that it is not necessary to show that the alleged discriminator consciously intended to victimise the alleged victim. Ms Machin's recognition of the inadequacy of the tribunal's self-direction as to the law is of course a matter which is of considerable assistance to the fortunes of Mrs Nixon's appeal. If the tribunal has misdirected itself in law, then, putting it at its lowest, there is a material risk that it will also have arrived at the wrong end result.[29]But Mr Sutton's criticisms of the tribunal's decision do not stop with the misdirection which he has identified. The further way in which Mr Sutton criticises the tribunal's reasons and decision is that he says that the tribunal failed to make primary factual findings in relation to the various allegations of discrimination and victimisation made against each respondent. He says that, apart from upholding Mrs Nixon's complaint in respect of the Tickled Trout Hotel incident, the tribunal confined itself to dealing compendiously with the allegations in paragraphs 37 and 38 of its reasons. He complains that neither there nor anywhere does the tribunal trouble to identify the relevant evidential issues, nowhere does it make any clear findings on these issues, nowhere does it offer a reasoned explanation as to why the complaints were rejected. He says that, in paragraph 36, the tribunal listed only certain of the many allegations Mrs Nixon was making, albeit that they may include the more important ones. The tribunal does not, however, make clear findings as to them. It refers in paragraph 37 to "other matters" it has considered, but it does not trouble to identify what they are. The tribunal says that the respondents' explanations of the allegations are both plausible and believable, but it does not explain what the explanations were. Mr Sutton says that this near summary disposition of Mrs Nixon's allegations in the "rolled-up" approach favoured by the tribunal, a summary of several days of evidence which has been compressed into little more than a page or so of unexplained findings, is wholly out of line with the approach to employment tribunals commended by the Court of Appeal in Anya v University of Oxford and Another [2001] IRLR 377 .[30]Anya is a race discrimination case but it is not questioned that exactly similar principles as it explained apply in sex discrimination cases. It is by now trite to observe that the problem with both types of case is that there will rarely be direct evidence of discrimination and the outcome of them will usually depend on the inferences which it is proper for the tribunal to draw from the findings it makes as to the primary facts relating to the complaints. It may be that those facts, when found, and if unexplained by the employer, will invite an inference of discrimination. It may be that they will not. But in order to put itself in the position to be able to decide what, if any, inferences can be drawn from the primary facts, the tribunal has to identify the factual matters which are in issue and make findings on them. In his judgment in Anya Sedley LJ opened his discussion of the applicable law by referring first, at paragraph 7, to the well-known decision of the Court of Appeal in King v Great Britain China Centre [1999] IRLR 513, in particular to the judgment of Neill LJ, and then supplemented it by a long citation from Mummery J's judgment in his judgment in this Appeal Tribunal in Qureshi v Victoria University of Manchester (21 June 1996).[31]Under the heading " The issues " Mummery J said:
"As the industrial tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision e.g.: (a) Did the act complained of actually occur? In some cases there will be a conflict of direct oral evidence. The tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the applicant is believed, has he brought his application in time and, if not, is it just and equitable to extend the time? (b) If the act complained of occurred in time, was there a difference in race involving the applicant? (c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same, or not materially different, relevant circumstances? (d) If there was difference in treatment involving persons of a different race, was that treatment "on racial grounds"? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent? In answer to each of these questions, the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence."
[32]Mummery J's next heading in his judgment was " The evidence ", under which he said, in part, as follows:
"As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences 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? This case is an illustration of the problem. The complaint of racial discrimination is usually sparked by a core concern of the applicant: in this case his failure to obtain support and recommendations for his promotion to a senior lecturer in the Faculty of Law. Dr Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years, from 1988 to 1994. The incidents relied on by him antedate, accompany and post- date the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the tribunal to find the facts relating to those incidents. 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 twofold: 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."[33]Further on in his judgment, under the heading " Inferences ", Mummery J said this:
"The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. Mummery J then referred to the observations of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124 in which, at paragraph 43 Peter Gibson LJ said: 43 "
Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion."[34]Having cited from Mummery J's judgment, Sedley LJ summarised the position himself by saying in paragraph 10 of his own judgment: 10 "Running through this guidance, and the guidance cited in it, is the ubiquitous need to make the findings of primary fact without which it is impossible to consider the drawing of relevant inferences. It can be found again in this court's judgment in Marks and Spencer Plc v Martins [1998] IRLR 326 , which cites Lord Browne-Wilkinson's reminder in Glasgow City Council v Zafar [1998] IRLR 36 , 38-39 that:
'Claims [of race and sex discrimination] present special problems of proof for complainants since those who discriminate on grounds of race or gender do not in general advertise their prejudices.'
Once again, King was highlighted by Lord Browne-Wilkinson as the leading source of guidance. It may be added that, as King and other cases demonstrate, the breakdown of issues need not always be as elaborate as was necessary in Qureshi ."[35]Finally, and in answer to the suggestion made that employment tribunals have to do no more than make findings and answer questions of law, Sedley LJ said this in paragraph 24 of his judgment: 24 "The difficulty is not answered by the decisions of this court relied on by Mr Underhill (Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198, and Meek v City of Birmingham District Council [1987] IRLR 250 ) to the effect that tribunals are not required to do more than make findings of fact and answer a question of law. In the race relations field this principle does no more than beg the questions: what findings, what law? It is elsewhere, above all in King , that the answers lie. In Tchoula v Netto Foodstores Ltd (Employment Appeal Tribunal, 6 March 1998) Morison J spelt out what this means in practice: 'A bald statement saying that X's evidence was preferred to Y's is, we think, both implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely that there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has bee received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons'."[36]In this context Mr Sutton also referred us to the decision of the Court of Appeal in Tran v Greenwich Vietnam Community [2002] IRLR 735 and in particular to paragraph 17 of Sedley LJ's judgment where the Lord Justice said: 17 "For these regrettable reasons, the appeal to this court cannot succeed. But it is necessary to make clear what is being decided and what is not. Mr Fodder, in his generally well-directed submission for the respondent, was prepared if necessary to defend the tribunal's extended reasons as (to coin a phrase) Meek -compliant. While for the technical reasons set out above this appeal does not depend on the answer, no employment tribunal and no advocate or representative practising in the employment field should imagine that a decision as short on reasoning as the present one complies with the legal obligation, if asked, to explain how the tribunal has got from its findings of fact to its conclusions. It may be done economically, but simply to recite the background and the parties' contentions and then to announce a conclusion is not to do it at all; and an opaque reference to the evidence which has been given does not save it. The giving of adequate reasons fulfils many functions, among them the important one of concentrating decision-makers' own minds on what they are doing and demonstrating to the parties and (if necessary) to appellate tribunals that they have given acceptable answers to the right questions. I find it disturbing that an experienced lay representative appears to have resigned himself to grappling with reasons which were not there instead of confronting their absence as a primary ground of appeal; and I hope that it does not signify that extended reasons like those given in the present case are becoming usual."[37]Having reviewed the guidance from these authorities as to the manner in which employment tribunals ought to deal with the special problems presented by contested race and sex discrimination cases, we have to say that we find that this particular tribunal failed the test in spades. It contented itself with making virtually no findings of fact at all on the key factual issues and confined itself to the most generalised statements in paragraph 37 that it was satisfied that the respondents had advanced plausible explanations for each of the incidents. Ms Machin submitted, although perhaps not very strongly, that that was sufficient to exculpate the respondents. For our part, however, we find ourselves left in a state of complete ignorance as to what the relevant facts of the matter were and as to whether there was in fact any justification for the tribunal's summary disposition of Mrs Nixon's complaints in the wholly unparticularised manner in which it did dispose of then in paragraphs 37 and 38. In our view, quite apart from the misdirection to itself on the law, which was an unsafe and unsound starting point, the tribunal has wholly failed to explain the facts, to make clear findings on them and to explain in concrete terms why no inference of any victimisation of Mrs Nixon was justified. Mrs Nixon is fairly entitled to say that the Tribunal's unreasoned conclusions give her no explanation at all as to why she has lost. Such were the tribunal's manifest shortcomings in the manner in which it handled these complaints that we are satisfied that its decision was fundamentally flawed in law.[38]We will allow the appeal and set aside paragraph 4 of the tribunal's decision. We will direct that there be remitted to a freshly constituted tribunal for re-hearing the complaints referred to in paragraph (iv) of the tribunal's decision.