DR H SAAD v (1) BIRMINGHAM CITY COUNCIL (2) SIR MICHAEL LYONS [2003] UKEAT 0734_02_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0734_02_0810Case No Appeal No. EAT/0734/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR H SAADAPPELLANT(1) BIRMINGHAM CITY COUNCIL (2) SIR MICHAEL LYONSRESPONDENT
Before
Mr Recorder LubaDate 8 October 2003
[1]APPEARANCES For the Appellant MR T KIBLING (of Counsel) Instructed by: Messrs Higgs & Sons Solicitors Inhedge House 31 Wolverhampton Street Dudley West Midlands DY1 1EY For the Respondent MR B LANGSTAFF QC and MISS S ROBERTSON (of Counsel) (of Counsel) Instructed by: Birmingham City Council Legal Services Ingleby House 11-14 Cannon Street Birmingham B2 5EN MR RECORDER LUBA QC This is an appeal by Dr Haroon Saad against the dismissal by the Birmingham Employment Tribunal of his claims for unfair dismissal, race discrimination and victimisation brought against Birmingham City Council and Sir Michael Lyons, its former Chief Executive. The Employment Tribunal's decision entered the Register on 15 May 2002.[2]The history of Dr Saad's employment by the City Council can be briefly summarised. On 18 October 1996, Dr Saad was offered and accepted the newly-created post of Head of Equalities with the City Council. He took a fixed term contract commencing on 13 January 1997, scheduled to expire on 12 January 2001. The contract provided that the appointment as Head of Equalities would be in the Personnel and Organisation Department of the Council. Dr Saad's immediate line manager was the head of that Department. However, for reasons associated with the background to the creation of the post of Head of Equalities, the contract Dr Saad had with the Council was held directly by Sir Michael Lyons its Chief Executive. As Head of Equalities and, therefore, as a senior officer of the Council, Dr Saad had a place in the Council's Chief Officers' group. He was the only non-white Chief Officer.[3]In the final year of his contract, Dr Saad made an originating application to the Employment Tribunal Service on 11 April 2000, alleging racial discrimination and victimisation by the City Council and by Sir Michael Lyons. On 10 July 2000, he gave written notice of termination of his employment with effect from 30 September 2000 and he left to take employment elsewhere. Subsequently, in an originating application dated 9 October 2000 he brought a further complaint to the Employment Tribunal Service of unfair dismissal. He contended that he had been compelled to resign from his employment primarily by reason of the unlawful breaches of contract by his employers which were constituted by the acts of race discrimination and victimisation of which complaint had earlier been made.[4]Directions were given for the matters of race discrimination, victimisation and unfair dismissal to be heard together. They were considered over several days by the Employment Tribunal (Chairman, Mr J van Gelder) in April and September 2001. The Applicant, Dr Saad, was initially represented at the Employment Tribunal by counsel but, thereafter, conducted his own case. He gave evidence and called two councillors of the City Council to give evidence on his behalf. At the Employment Tribunal, the Council was represented by leading Counsel and evidence was given by Sir Michael Lyons, the Second Respondent, and by a number of other witnesses. In addition to hearing this oral evidence the Tribunal had the benefit of a considerable volume of documentation, including a Race Relations Act questionnaire, a very full written statement by the Applicant, voluminous copy correspondence, and other relevant material. In all, some three volumes of documents were before the Employment Tribunal.[5]Having been presented with what was a considerable volume of evidence, the Employment Tribunal reserved its decision. For reasons that it has set out in written Extended Reasons, the Tribunal unanimously dismissed all of the Applicant's claims (for unfair dismissal, race discrimination and victimisation). The Extended Reasons run to some 38 closely typed pages. The content reflects not only detailed consideration of the oral and written evidence but also the account taken of the detailed written closing submissions, and replies to those submissions, put in by each of the parties.[6]By his Notice of Appeal, settled by counsel, Dr Saad contends that the Employment Tribunal erred in law in reaching the conclusions that it did on each of the three aspects of his complaint (race discrimination, victimisation and unfair dismissal). By a Respondents' Notice, the Council and Sir Michael Lyons seek to uphold the conclusions of the Tribunal for the reasons that they gave. An Employment Appeal Tribunal gave directions for the conduct of the appeal in an Order made on 11 November 2002, following an ex parte preliminary hearing. It was recorded in that Order that Counsel for the Appellant had abandoned that part of the Notice of Appeal which criticised the Tribunal's decision as being perverse.[7]Before us, the Appellant's case has been put by Mr Thomas Kibling of Counsel, who is not the Counsel who was instructed to appear before the Employment Tribunal. The interests of the City Council and Sir Michael Lyons have been represented by Mr Langstaff QC (who again had not appeared before the Employment Tribunal) leading Ms Sally Robertson. We are grateful to all Counsel for the assistance they have given us, not only in their careful and measured oral submissions but also in the written submissions that were supplied in advance of our consideration of this appeal. The Decision of the Employment Tribunal[8]Before coming in detail to the criticisms made by the Appellant, it is right to outline the way in which the Employment Tribunal approached the case.[9]The Originating Application lodged by the Applicant in April 2000 indicated that he raised, as instances of racial discrimination, matters stretching back in the history of his employment to the same year in which his contract commenced, i.e. 1997. The essential contention for Dr Saad was that these instances taken together demonstrated a policy of racial discrimination against him being pursued by the Council and/or by Sir Michael Lyons, its Chief Executive. That was an essential contention for Dr Saad to make, for otherwise his complaints would have been out of time in respect of any complaints earlier than three months before the presentation of his Originating Application, i.e. in respect of matters earlier than 12 January 2000.[10]It was, therefore, necessary for the Employment Tribunal to look in turn at each and every one of the specific matters upon which Dr Saad was placing reliance to see, not only what substance there was, if any, in each of those matters but also to see whether they represented a pattern of acts of discrimination, or contributed to a policy of discrimination, which was continuing up to and beyond 12 January 2000. Because the Originating Application had, by the autumn of 2000, been supplemented by a complaint of unfair dismissal relying on much the same material, it was also important for the Tribunal when looking at the incidents in question to see whether they, or any of them, amounted to such repudiatory breach of contract by the employer as to justify the employee terminating his employment and thus constituting constructive unfair dismissal.[11]The course adopted by the Tribunal in its Extended Reasons was to take each of the incidents, or matters, in the order in which they were raised by the Applicant in the Originating Applications before them. They, of course, do not recount the detail of those matters that the Applicant did not in the event pursue. In relation to the matters which remained in dispute they make findings of fact in relation to each of those specific matters after providing a summary of the Applicant's allegation, or contention, in relation to each such item. Having concluded that fact-finding exercise in their Extended Reasons, they next direct themselves as to the relevant law. The Extended Reasons contain ample citation of the relevant statutory provisions and reference to the leading cases containing the principles to be applied by Employment Tribunals in this field. Finally, the Tribunal give their conclusions, on the matters before them, in respect of all three aspects, i.e. race discrimination, victimisation and, lastly, unfair dismissal.[12]It is right to explain at this stage that in their conclusions the Tribunal's approach is to review the whole history of the period of the Applicant's employment, i.e. from 1997 to its termination in September 2000. In that way the Extended Reasons deal in context and in chronological order with the complaints made by Dr Saad which is not necessarily the same order in which they are set out in the findings of fact. However, the Tribunal evidently found it convenient to produce their Extended Reasons in this way and it is difficult to see what criticism can be made of them in that regard. This is all the more so, as a number of the complaints made by Dr Saad overlap each other in period of time. That is because, for example, some of his complaints relate to the ways in which incidents were investigated and/or not investigated. In between the incident in question and the process of investigation other matters or incidents arose. It is tolerably clear, however, that in that part of their Extended Reasons in which the Tribunal give their conclusions, they were intending to reach conclusions in the context not only of the overall history of Dr Saad's employment by the City Council but also to deal in chronological sequence with each of the specific incidents and allegations made by him. No doubt they felt that this approach would also assist them in considering what inferences might helpfully be drawn from the whole history of the employment (or parts of it) where such inferences might assist in determining whether there had been racially motivated discrimination or victimisation in the respects alleged. Our approach on this Appeal[13]Mr Kibling opened his oral submissions in support of the appeal with an invitation to this Employment Appeal Tribunal not to be unduly pre-disposed to uphold the Employment Tribunal's decision simply on account of the length of the hearing that it had conducted and the obvious time, energy and detail which had been deployed in preparation of the Extended Reasons. He urged that such matters should not deflect us from interfering with its decision if the Tribunal had erred in law. In support of that submission he reminded us that in Qureshi v Victoria University of Manchester [2001] ICR 863 this Appeal Tribunal had set aside a decision of the Manchester Employment Tribunal which had heard evidence over a period of 15 days and had provided Extended Reasons running to some 70 pages.[14]We accept Mr Kibling's invitation and the thrust of that submission. It seems to us that if an Employment Tribunal has erred in law then, reluctant as this Employment Appeal Tribunal will be to see the parties bear the inconvenience, time, trouble and expense of a further hearing, nevertheless we must intervene, and if appropriate to do so, direct a re-hearing.[15]Thus, although we have been much impressed by the thoroughness with which the Employment Tribunal have set out their findings of fact and stated their conclusions and, indeed, recited the relevant law, we have applied just as close a scrutiny to their decision in light of the grounds of appeal as we would have in a case which had not needed and attracted such degree of input from the Employment Tribunal Chairman and its members. The Appellant's Submissions[16]We have drawn attention already [paragraph 6 above] to the abandonment by the Appellant of any contention that the Tribunal's decision was perverse. Instead, Mr Kibling puts at the forefront of his case the single question:
"Whether the Employment Tribunal discharged the obligation on them to make the relevant findings and then applied the law correctly to those findings."
He characterised all the specific matters set out in the Notice of Appeal, as developed in his careful written submissions, as being parasitic on that essential question.[17]Accordingly, in the course of an illuminating argument, Mr Kibling set out to demonstrate that, notwithstanding the detail with which they had treated the complaints before them, this Tribunal had erred. Indeed, it is a tribute to the work of the Employment Tribunal in this case that no criticism was made by Mr Kibling of their findings of fact. He did not seek to reopen any of those findings. His argument lay along a different tack.[18]He submitted that the Tribunal had failed to take the appropriate approach to complaints of race discrimination and victimisation that the relevant law requires. Further, because of that flaw in relation to race discrimination and victimisation, the Tribunal's finding on constructive unfair dismissal was infected by error and also must be set aside. He submitted that had the Tribunal correctly directed themselves on race discrimination and victimisation, they would have upheld (or may have upheld) the Applicant's complaints. That upholding of those complaints would have established repudiatory conduct on the part of the employer which would have justified Dr Saad's resignation and thus established a case of constructive unfair dismissal.[19]In relation to the complaints of race discrimination , Mr Kibling contends that the Tribunal failed to take a structured approach to each or any of the specific allegations. He submits that the Tribunal were required by law to ask themselves, in relation to each matter and in the light of their factual findings on that matter: firstly, whether there had been a less favourable treatment of the Applicant than an actual or hypothetical comparator; secondly, whether there was a difference in race between the actual or hypothetical comparator and the Applicant and; thirdly, whether any less favourable treatment had been on racial grounds. Mr Kibling's submission was that the Employment Tribunal had misdirected themselves in not adopting that approach to the complaints of race discrimination.[20]He reminded us of the terms of section 1(1) Race Relations Act 1976 and stressed that an Employment Tribunal approaching a complaint of breach of that provision should address itself to the factual allegations in a structured manner. He relied, in particular, upon the decision of this Employment Appeal Tribunal (Mummery J. [as he then was] presiding) in the case of Qureshi v Victoria University of Manchester [2001] ICR 863 . The Employment Appeal Tribunal in that case, he submitted, had developed further the guidance given by Neill LJ in the leading case of King v Great Britain China Centre [1992] ICR 516 . In particular, it had suggested (at page 873) a four-stage approach be taken by an Employment Tribunal in addressing a complaint of racial discrimination i.e that the Tribunal ask itself:-(a) whether the act complained of had actually occurred(b) if the act complained of had occurred, whether there was a difference in race involving the Applicant(c) if there was a difference in race, whether the Applicant had been treated less favourably than the alleged discriminator had treated, or would have treated, other persons of a different racial group in the same, or not materially different, circumstances and(d) if there was a difference in treatment, was that difference in treatment "on racial grounds"?[21]Mr Kibling submitted that, as a matter of law, this was the approach that the Employment Tribunal should have followed in this case. He did not shy from the fact that at paragraph 47.2 of its Extended Reasons the Employment Tribunal had extracted -in full - this four-staged approach from the Qureshi judgment in its recital of the relevant law. His submission was that they had failed to apply it.[22]Mr Kibling's submissions then invited our attention to the treatment by the Employment Tribunal of each of the 15 or so specific complaints of racial discrimination contained in the Originating Application. He invited us to review whether the Employment Tribunal had considered, in relation to each and every one of them, whether the act in question had been established; whether a comparator had been, or would have been, similarly treated; whether there was a difference in race and, if there was such a difference, whether there was differential treatment on racial grounds.[23]In relation to those parts of the narrative section in the Extended Reasons, in which the Employment Tribunal turned to consider specific complaints, Mr Kibling submitted that their language did not follow the rubric of the four-step Qureshi approach. He took us to passages containing language which he described as more redolent of the approach to be taken in an ordinary unfair dismissal case. He drew attention to the Employment Tribunal's use of terminology such as "reasonable", "proper", "legitimate" and the absence of more appropriate language relating to "less favourable treatment", "comparators", etc. He invited us to find that the Tribunal had, in its consideration of the racial discrimination complaints, simply forgotten or overlooked the direction it had given itself as to the proper staged approach to be followed.[24]In order to develop these submissions, in respect of each of the 15 or so complaints of racial discrimination, he took us to the original wording of the complaint in the Originating Application, then to the way in which the case for each of the parties had been put in the written submissions before the Employment Tribunal. He then reminded us of the relevant finding of fact by the Employment Tribunal and took us to the relevant part of the narrative containing their conclusions on that aspect.[25]Further, he submitted that in relation to two of the 15 matters (those numbered 4(iii) and 4(iv) in the Originating Application), the Tribunal had failed in the narrative containing its conclusions to address itself to those complaints at all. Recognising that the process of scrutiny on a complaint-by-complaint basis would be time consuming at the appellate level, Mr Kibling focussed in his oral submissions on particular instances in which he contended the Tribunal had fallen short. He prepared a useful note during the overnight adjournment listing the passages in the Originating Application, in the original written submissions, and in the Extended Reasons of the Tribunal dealing with those matters that he was not able to cover in his oral submissions.[26]In sum, his complaint was that the Employment Tribunal had not followed the rubric set out in the Qureshi case for the proper handling of race discrimination complaints.[27]The substance of his submissions on the appeal in relation to the victimisation complaints was much the same. He reminded us of the provisions of section 2 of the Race Relations Act 1976 dealing with victimisation. He categorised the present complaint as one of victimisation contrary to section 2(1)(c). He reminded us that Dr Saad had asserted that he had been the subject of less favourable treatment by reason of the fact that in early 1999 he had complained of ongoing race discrimination in his treatment by Sir Michael Lyons, the Chief Executive.[28]Here again, Mr Kibling's submission was that the Tribunal had misdirected itself. He recognised that the Tribunal had correctly identified the decision of the House of Lords in Chief Constable of West Yorkshire v Khan [2001] ICR 1065 as giving perhaps the most helpful guidance on the approach to be taken to a complaint of victimisation. He took us to the speech of Lord Nicholls and, in particular, passages at paragraphs 23 to 29. He suggested (we consider correctly) that Lord Nicholls in that passage was suggesting a three-stage approach to consideration of a complaint of victimisation. First, an Employment Tribunal must find whether the circumstances alleged were circumstances "relevant" for the provisions of the 1976 Act. Second, the Tribunal should make a comparison between the treatment afforded to the complainant in the relevant respect and the treatment that the employer had afforded, or would have afforded, to other comparators in the same circumstances. Third, the Tribunal should ask itself whether it was "by reason that" the Applicant had done a protected act that the alleged discriminator had acted as he had. That last, Lord Nicholls described as a "question of fact". Mr Kibling took us to passages in the speech of Lord Mackay (in particular at paragraph 43) to emphasise that it was the view of the majority of the House that such a structured approach should be, or must be, followed by an Employment Tribunal.[29]The need for a structured approach in Race Relations Act cases generally was, Mr Kibling submitted, supported by the earlier decision of the House of Lords, in Glasgow City Council v Zafar [1998] ICR 120 . Mr Kibling relied, in particular, on passages in the speech of Lord Browne-Wilkinson (at page 123). The approach, he contended, was the same, i.e. that the Tribunal should:(1) identify whether the alleged act occurred or not;(2) identify whether it evolved less favourable treatment of the Applicant than an actual or hypothetical comparator; and(3) determine whether that less favourable treatment was on grounds of race (or, a victimisation case, by reason of the relevant protected Act).[30]Having set the scene in this way, Mr Kibling then invited our attention to the Tribunal's handling of the complaints of victimisation and sought to demonstrate that here again the Tribunal had not followed the proper, or appropriate, approach.[31]In relation to his submissions on both race discrimination and victimisation, Mr Kibling shortly addressed us as to the impact of the very recent decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 [2003] ICR 337 . That, again, was a discrimination case in which Lord Nicholls gave useful guidance as to the proper approach that a Tribunal might take.[32]In conclusion, Mr Kibling's central criticism was that in respect of both race discrimination and victimisation the Tribunal had failed to adopt the usual approach for the determination of such complaints. While he recognised that, particularly after the speeches in Shamoon , an Employment Tribunal might enjoy a degree of flexibility, he nevertheless submitted that any Employment Tribunal must approach its task through "the prism of the statutory scheme" and that, he contended, this Tribunal had not done.[33]Throughout his submissions Mr Kibling recognised and, indeed, asserted that this central line of argument was at the core of the whole Notice of Appeal. Indeed, he described the other specific heads of appeal as dependant upon its correctness. The Respondents' Submissions[34]Mr Langstaff QC urged upon us a cautious approach to the submissions made by Mr Kibling. In particular, he drew attention to the fact that much in the written and oral submissions made by Mr Kibling depended on references to the written submissions made by the parties to the Employment Tribunal as distinct from the actual evidence deployed before it. He reminded us that Mr Kibling had accepted that he could not go behind the findings of fact recorded by the Tribunal in the first 20 or so pages of their written Extended Reasons. He, therefore, invited our attention to the way in which the Tribunal had in fact approached the task of reaching their conclusions on the basis of the facts that they had found.[35]He took us through the structure of the Employment Tribunal's Extended Reasons and invited us to accept that the Tribunal had followed the usual format of: first, making findings of fact on the individual allegations; secondly, directing itself to the appropriate law and then; thirdly, setting out its conclusions by reference to its findings of fact and its directions of law. He joined issue with Mr Kibling's submissions as to whether the Tribunal's conclusions, given in narrative form, had or had not covered each and every one of the 15 discrete allegations of racial discrimination. He provided us with a very helpful schedule to his written submissions tabulating each allegation and cross-referencing it to the Tribunal's findings of fact and the treatment in the narrative. By reference to the narrative, he drew attention to the fact that the Tribunal had identified four themes as forming the backcloth to the Tribunal's review of the Applicant's employment by the Council and the various incidents that had occurred during his period of appointment. Those he labelled respectively:-(1) the nature of the appointment and the background to the new post;(2) the character and personal nature of the Applicant;(3) his reliability as a senior officer and;(4) the legitimate reasons advanced by the Respondents in respect of each particular act (as demonstrating that there was no racial grounding to any alleged difference in treatment).[36]Relying on his schedule, which was not disputed (in its detail) to any significant extent by Mr Kibling, he invited our attention to specific passages in the narrative provided by the Employment Tribunal which linked-back to, or referred to, the individual discrete complaints of discrimination or victimisation.[37]As to Mr Kibling's fundamental proposition that the Tribunal had misdirected itself in the approach it had taken, he submitted that the essential question was whether the Employment Tribunal had or had not applied the statutory provisions correctly and not whether they had followed a particular path or deployed a rubric suggested as "likely to be helpful" in the judgment of any particular court. He reminded us that in Zafar Lord Browne-Wilkinson had indicated that "at the end of the day" the discrimination provisions required "an answer to be given to a single question" (page 123g-h). He submitted that, provided the Tribunal had asked itself the statutory question, the precise way in which it set about answering the question was immaterial. The single question was why an individual person had been treated as they had been and, he contended, that the Tribunal here had answered that question in relation to each of the specific allegations. He urged that an Employment Tribunal was not required to follow in each and every case the four-staged approach set out in the Qureshi case. Nor the staged approach suggested in speeches by members of the House of Lords in the other cases we have referred to above. As modern authority in support of this general proposition, he relied on the speeches in the recent case of Shamoon v Chief Constable of the Ulster Constabular y and, in particular, on passages in the speeches of Lord Nicholls (paragraph 12), Lord Hope (paragraph 48) and Lord Rodger (at paragraph 125).[38]In short, he submitted that an Employment Tribunal is not bound in any particular case to adopt a two-stage approach, or a three-stage approach, or any other particular formula. In his submission, the single question for the Employment Tribunal to ask in relation to each specific incident was whether the Applicant had, in respect of that act or omission, been treated less favourably on racial grounds (or, in respect of victimisation, by reason of the making of a protected act). In so far as he considered necessary to do so, Mr Langstaff then took us into the narrative of the Employment Tribunal to demonstrate how the individual complaints had been dealt with by applying the statutory provisions. Our Conclusions[39]As we have already indicated, the Employment Tribunal here set out, in the directions of law that they were giving themselves, the relevant statutory provisions and the appropriate extracts from the leading authorities. Of course, simply setting that material out is not of itself sufficient. It was obviously appropriate that we examined the conclusions reached by the Tribunal to see whether they had properly applied the law to the findings of fact that they had made. As recorded above, the findings of fact made by this Employment Tribunal were not challenged by the Appellant.[40]Everything, therefore, turns on the way in which this Employment Tribunal approached the task of reaching its conclusions. Did it, as the Appellant contends, forget or abandon the directions that it had given itself as a matter of law or did it, as the Respondents contend, ask itself the central questions posed by the statutory provisions and answer them?[41]We have no hesitation in finding that the Employment Tribunal's conclusions in this case are not vitiated by any error of law or incorrect approach. We are not persuaded that there is a mandatory structure, rubric, or formulae, to be applied by the Employment Tribunal in every case of alleged discrimination, or victimisation, in reaching its conclusions on a particular complaint. Certainly this is a subject area in which many Employment Tribunals have found that sticking closely to the precise words of guidance given by the appellate courts has considerably assisted them in their task. The cases coming before this Appeal Tribunal amply demonstrate the frequency with which such guidance is both reproduced in Tribunal decisions and very closely followed and applied.[42]But in each of the cases to which reference has been made, and in which the Employment Tribunal, the Court of Appeal or the House of Lords has set out a formula, or series of possible "steps" in relation to the decision-making process, it has done so in language making it clear that the course proposed is a possible, or permissible, approach, not that it is exclusive or mandatory. Even in Qureshi , the four-staged approach formulated by the Employment Appeal Tribunal was prefaced with the comment that the "observations and thoughts" tendered were put forward "tentatively" (page 873c).[43]That cautious approach - to what otherwise might amount to setting a fixed path by which Tribunal's must address the statutory provisions - is underscored by the recent decision in Shamoon . The speeches of each of their Lordships in that case make it clear that the central question for an Employment Tribunal is the question posed by the relevant statutory provision in play. Provided that the Employment Tribunal asks itself the correct statutory question then it is not incumbent upon it to follow any particular staged, or stepped, approach. We refer, in particular, to the speech of Lord Nicholls of Birkenhead. He said (at paragraph 7):
"When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider , first, whether the claimant received less favourable treatment than the appropriate comparator ... and then, secondly, whether the less favourable treatment was on the relevant prescribed ground ..." [Emphasis added]
[44]At paragraph 8 he added:
"No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: Did the claimant on the prescribed ground receive less favourable treatment than others?"
[45]Later in his speech (at paragraphs 11 and 12) he makes it plain that an Employment Tribunal is entitled to concentrate "primarily on why the claimant was treated as she was"[46]There is, in our judgment, nothing inconsistent with the endorsement of such a straightforward approach to be found in the earlier decision of their Lordships' House in the Khan case.[47]Lord Hope in Shamoon (paragraph 48) rejects in terms the necessity for a staged or stepped approach. He says "The [statutory] phrase directs attention to all the circumstances which are relevant to the way in which the woman has been treated. Moreover, there is no need to break this test down into two parts. It is, as Lord Nicholls has said, in essence a single question." and at paragraph 49 he adds "but, whichever approach is adopted, one must not lose sight of the fact that [the relevant statutory provision] must be read as a whole ...".[48]Similar passages are to be found later in the speeches of Lord Hope and, also, in the speech of Lord Rodger (in particular paragraphs 125 through to 127).[49]Before leaving the Shamoon case, it is right to extract the passage from the speech of Lord Hope (paragraph 59) which deals with the expectation in relation to the content of an Employment Tribunal's reasoning in a case of this class: "It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis".[50]Notwithstanding those words, we have in this case given very careful consideration to the reasoning adopted and the conclusions reached by the Employment Tribunal to see whether they have impermissibly strayed from the task imposed upon them by the need to apply the statutory provisions. We are quite satisfied that in the course of the Extended Reasons the Tribunal has, in respect of each of the specific complaints of race discrimination and victimisation, applied the statutory provisions to the facts and answered the composite statutory questions.[51]It would unduly lengthen what is already a lengthy judgment to set out - in turn - the numerous specific complaints and to then subject to detailed scrutiny the Tribunal's consideration of them. Our reluctance to do so should not be thought to diminish the importance and seriousness of the matters that Dr Saad had put before the tribunal. His complaints related to such matters as: failure to support or implement committee papers or strategies he had prepared; failure to give him the roles accorded to other Chief Officers in relation to Council committees; inappropriate investigation of complaints against him; failure to properly investigate and determine complaints made by him and; the failure to include him in an overseas delegation or approve an application he had made for overseas travel. This list gives only a flavour of the full range of matters deployed before the Employment Tribunal.[52]To test the adequacy and correctness of the Employment Tribunal's treatment of those matters it is sufficient to take one specific incident of alleged discrimination or victimisation. We have selected the first such matter (or the chronologically earliest) because both parties urged - in the course of their submissions - that it was respectively, either an example of a flawed approach or, an example of a correct approach.[53]In 1997 a junior employee complained, initially via the police, that Dr Saad had improperly brought pressure to bear on him with a view to his production of inaccurate data in a report he was compiling. The matter came to the attention of several councillors and the Chief Executive and received wider publicity. Sir Michael Lyons commissioned the Director of Finance to undertake an investigation in order to determine the facts and to report-back to him. That was then done. Dr Saad contended before the Employment Tribunal that it had not been proper or necessary to have commissioned such an inquiry into the complaint and that, if (to the contrary) such inquiry had been necessary it should have formed part of a proper formal disciplinary process. Sir Michael's conduct in not proceeding by either of those routes was, he alleged, part of a discriminatory practice, policy or regime applied to him.[54]The Tribunal found the facts as to what exactly had occurred and set them out at paragraphs 4 to 9 of the Extended Reasons. In its chronological narrative setting out its conclusions, it returned to this specific matter at paragraph 48.3. It said (in part):- "The circumstances giving rise to the investigation were fully justified. Faced with such a serious allegation by a member of the Council staff which directly concerned Dr Saad, the only reasonable course of action which could have been adopted by Sir Michael was to seek to establish whether the allegations were credible. Putting in train a fact finding investigation by a senior colleague who was independent of the department was what might have been expected. It was incumbent on Sir Michael to take such steps given the nature of the allegations and irrespective of the status or ethnic origin of the officer against whom the allegations had been brought".[55]Did the Employment Tribunal, in that passage (which is only an extract from its full treatment of the matter), adequately discharge its task of answering the question: whether Dr Saad had on racial grounds been treated less favourably by Sir Michael than another senior officer would have been in the same circumstances? Without hesitation we conclude that it did. Certainly, it could have approached the answering of that single composite question along a staged or stepped route. But even from the short passage we have extracted it is plain to see that the Tribunal would have said that:(a) the act alleged occurred(b) there was a difference in race [it being accepted that all other Chief Officers were white](c) there was no "less favourable treatment" but(d) even if there was, it was not on racial grounds. Nothing in the statute requires it to take this formulaic approach in preference to the one it in fact adopted.[56]In our consideration of this appeal we reviewed, of course, not only this specific example but also the Tribunal's conclusions on the other matters complained of and to which they accorded broadly the same treatment. In our judgment, the Employment Tribunal in this case were perfectly entitled to take the course that they did - of looking(a) in overview at the circumstances as they were prior to the appointment of the Applicant to the post of Head of Equalities,(b) as they became during his employment and then(c) putting in context each and every one of the incidents that were complained of in their chronological sequence and against the correct factual background as they had identified it. It is quite plain that when rhetorically asking themselves each time the question "why did this happen to the Applicant?" a perfectly cogent explanation was tendered and was accepted by the Tribunal making it manifest that any difference in treatment of the Applicant, as compared with any actual or hypothetical comparator, was amply justified by material that had nothing to do with any racial grounds or the fact that the Applicant had done any protected act in terms of section 2 of the Race Relations Act 1976.[57]Of course, we recognise that the Tribunal would have been entitled to take the more formulaic approach urged by Mr Kibling. In respect of each and every one of the 15 specific allegations of race discrimination and the subsequent complaints of victimisation, the Tribunal could have followed a "stepped" approach, identifying discretely the particular act and asking itself in turn, whether there was a difference in treatment, whether there was a difference in race, and whether the differential treatment was on racial grounds (or by reason of the doing of a protected act) ? In many cases that will be the helpful, safe and sensible course for a Tribunal to take. But in the context of this particular case, that approach would have made the decision unwieldy and more difficult to read that it otherwise needed to be. It was perfectly proper, in our judgment, for the Tribunal to reach its conclusions in this case in the way that it did.[58]The above conclusions effectively dispose of this appeal - rejecting, as they do, the fundamental basis upon which Mr Kibling mounted his attack on the Tribunal's decision. We have not, however, overlooked his criticism that there were two specific acts complained of by Dr Saad which are not dealt with in the conclusions of the Employment Tribunal. We have carefully considered that criticism. It has two answers.[59]First, they were dealt with. Assisted by Mr Langstaff QC, we were taken to the appropriate passages in the Extended Reasons where, in some cases directly and in others more indirectly, those specific incidents are addressed. The first allegedly "missed" item was the matter numbered 4(iii) in the Originating Application. Dr Saad's contention was that he had not been accorded (as other Chief Officers had been) a chief constituency officer role in relation to a Council initiative known as "L.I.L.A" but had instead been allocated only a "ward officer" role. The Employment Tribunal find the facts and set them out at paragraph 11 of their Extended Reasons. After that recital they add the following sub-paragraph:
"The tribunal accepted the evidence of Sir Michael that the general view of the post of constituency chief officer was that it was accepted as a task without any great enthusiasm whereas the applicant had indicated that he saw specific benefits in being able to carry out the ward officer role within that particular ward."
[60]Mr Kibling complains that in so far as this is a conclusion that there was "no less favourable treatment" it is not in the "Conclusions" section of the Extended Reasons. In our view there is nothing in that point. The Tribunal in fact return to the "L.I.L.A" matter at paragraph 48.18 when dealing with another compliant by Dr Saad that he was discriminated against in a later committee/officer re-arrangement. They say:
"Just as in the case of Dr Saad's appointment as ward officer... the tribunal accepted that there had been legitimate reasons for the applicant not being appointed... and those reasons did not give rise to an inference that he had been subject to discriminatory treatment."
[61]Accordingly, in our judgment, it is hopeless to contend that the Tribunal failed to consider and determine whether in relation to the LILA matter Dr Saad had been subjected to less favourable treatment on racial grounds. The Tribunal's conclusions are palpably clear.[62]The second allegedly "missed" matter was Item 4(iv). Dr Saad alleged that a paper he had prepared for a committee about a community trust company proposal had been subject to the attachment of a critique and a reference to the Chief Officer's Group. Such amounted, he said, to discriminatory treatment. The facts are fully found and recounted by the Tribunal in its lengthy paragraphs 13 and 14. In short summary, the Tribunal found that Dr Saad's initial report and his submission of it to the relevant committee had provoked written complaints from the Councillor responsible for the implementation of the relevant council initiative and the senior officer with responsibility for the Committee. Their concerns were that Dr Said had attempted to "bounce" (our term) a proposal through the committee structure. The Tribunal found that what Dr. Saad had attempted amounted to "short-circuiting" council procedures and that "not surprisingly" this attracted criticism. Having found those facts, the tribunal mention the incident again in their conclusions at 48.4 and 48.5. They are there reviewing components of what they identify as a recurrent theme, explaining many of the matters of which Dr Saad complained, ie that they were the perfectly understandable and inevitable consequences of his own inappropriate actions. They spell out this "thread running throughout" the history of the employment more particularly at paragraphs 48.23 to 48.25.[63]Against that background, criticism that this matter was overlooked is simply without foundation. The treatment of this particular matter however serves to emphasise how redundant it would have been - on the facts of this particular case - to have expected the Tribunal to laboriously work through some three or four staged process in relation to each matter before answering the question whether Dr Saad had been less favourably treated on racial grounds. The plain answer to that composite question emerges with ample reasoning from this Tribunal's Extended Reasons.[64]The second general point, in relation to the allegedly missed items, is that both of them relate to matters arising long before the presentation of the originating application and are thus "out of time" unless linked to some underlying or continuing discriminatory act or practice. In the context of the narrative of the Tribunal's conclusions as a whole, it is quite plain that the Tribunal was rejecting the Applicant's fundamental case that the Respondents, and in particular the Second Respondent, had throughout been guilty of a policy or practice of discriminatory treatment of the Applicant in his post. Thus, even if they were "missed" (and in our judgment they were not) that would not enable this appeal to be allowed as the specific complaints were in any event "out of time".[65]We can discern (for the same general reasons) no distinct failing by the Tribunal in relation to the approach it took to the victimisation complaints and, indeed, Mr Kibling sensibly recognised that the criticisms he made in relation to race discrimination were mirrored by the criticisms made in relation to victimisation. The two aspects of the appeal accordingly stood or fell together. For the reasons we have given, we are satisfied that there was no error in this Tribunal's approach to its task whether in relation to the matters of victimisation or racial discrimination. There being no discrete point remaining in relation to unfair dismissal , we accordingly dismiss this appeal against all three of the component parts of the Tribunal's decision. The Application for Costs[66]At the close of submissions, Mr Langstaff made an application for costs on behalf of the Respondents. That application was not for the costs of the whole appeal (and, indeed, we would observe that such an application would have had no prospects of success). Rather, his application was for the specific costs of the Respondents thrown away by having to deal with what he submitted was an inordinately and unnecessarily large Appeal Bundle.[67]The Appeal Bundle before us extended to some 447 pages. That is quite apart from the separately filed Skeleton Arguments, written submissions, schedules and Bundle of Authorities. Mr Langstaff's application was put on the footing that the Appellant had unreasonably conducted the appeal by including in the Appeal Bundle voluminous materials extracted from those which had been before the Employment Tribunal and which had no bearing on the way in which the appeal was to be argued. In those circumstances, he put before us a schedule of costs indicating the amount of time expended by Counsel and solicitors in dealing with the additional and unnecessary documentation and quantified in the sum of £1,770. The submission was augmented by reference to pre-hearing correspondence in which the Respondents' representatives had specifically urged the Appellant to pare-down, or otherwise reduce, the scope of the Appeal Bundle.[68]Mr Kibling (who had, in opening, apologised for the size of the Bundle) urged that the Employment Appeal Tribunal's own Practice Direction was responsible for the inclusion of a large amount of the material in the Appeal Bundle, not least the already lengthy Extended Reasons, the Orders of the Tribunal (and of the Appeal Tribunal), the Chronology and Submissions which had been in play before the Employment Tribunal, and the Race Relations Questionnaire. However, he recognised that there were some 150 or so further pages of documents going beyond those requirements. Those had been included, he submitted, because it was not clear (when the appeal was being prepared) just how forensic the examination of the Grounds of Appeal was going to have to be at the hearing. He particularly challenged the item in the Respondents' schedule which suggested that junior Counsel had spent some six additional hours in preparing to meet any argument which might be based on these documents. At our invitation, junior Counsel for the Respondents (Ms Robertson) confirmed that her time recording in this respect was accurate.[69]This Employment Appeal Tribunal is always wary of exercising a costs jurisdiction based on unreasonable conduct of the appeal. However, having regard in particular to the fact that the Respondents' representatives had urged the Appellant, in advance, to consider some sensible reduction of the Appeal Bundle, and having regard to the fact that in the event only a tiny number of the 440-odd pages of documentation were referred to in the course of this appeal (or were ever likely to be referred to), we believe that there has indeed in this case been unreasonable conduct by the Appellant to the extent alleged by the Respondents. It is precisely in order to avoid this expense that the normal rule in this Appeal Tribunal is that a bundle should not, without very good reason, exceed 100 pages. Accordingly, in exercise of our discretion, we award the Respondents the costs thrown away by dealing with this unnecessary and, for the purposes of this appeal, irrelevant documentation. We accept the figure proposed by the Respondents which was not seriously challenged by the Appellant save in the respect mentioned. Accordingly, we order the Appellant to pay the Respondents' costs which we assess in the sum of £1,770.