MR V FEARON v THE CHIEF CONSTABLE OF DERBYSHIRE [2004] UKEAT 0445_02_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0445_02_1601Case No Appeal No. UKEAT/0445/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V FEARONAPPELLANTTHE CHIEF CONSTABLE OF DERBYSHIRERESPONDENT
Before
His Honour Judge J McMullenDate 16 January 2004
[1]APPEARANCES For the Appellant MS ALTHEA BROWN (of Counsel) Instructed By: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MR COLIN BOURNE (of Counsel) Instructed By: Messrs Browne Jacobson Solicitors 44 Castle Gate Nottingham Notts NG1 7BJ HIS HONOUR JUDGE J McMULLEN QC : This case concerns the correct test to be applied when an allegation of victimisation is made under the Race Relations Act ; and the correct approach to handling a series of allegations of race discrimination said to constitute a single regime of discrimination. The judgment represents the view of all three members. We will refer to the parties as Applicant and Respondent. Introduction[2]It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal sitting at Nottingham over 55 days (including 12 in Chambers) between 11 June 2001 and 31 January 2002, Chairman Mr S. Keevash, registered with Extended Reasons which extended for 52 pages, on 14 March 2002. The parties were represented, as here, by Ms Althea Brown and Mr Colin Bourne respectively of Counsel.[3]The Applicant claimed direct discrimination on the grounds of race; and victimisation for having complained of race discrimination. He defines himself as of Afro-Caribbean origin. The Respondent denied the allegations and contended the application was out of time. The Tribunal decided that the Respondent did not treat him less favourably on racial grounds or victimise him between 23 April 1983 and 29 August 2000 and thus dismissed his complaints. The Tribunal did not define the issues. The issues can however be divined from the following:
"1 By his amended originating application the applicant complained that the respondent unlawfully discriminated against him on racial grounds. In box 11 of the Originating Application he provided details of his complaint under the heading 'LACK OF ADVANCEMENT AND CAREER OPPORTUNITIES WITHIN THE DERBYSHIRE CONSTABULARY'. By its Notice of Appearance the respondent resisted the complaint. 13 Miss Brown submitted that there was a policy, practice, rule or regime that constituted a continuing act within the meaning of Section 68(7) of the 1976 Act. The respondent, from the very highest levels of senior officers, had a specific policy, practice or regime to ignore the applicant's complaints of discrimination, thereby allowing the discriminatory conduct he complained of to continue, and thereafter to marginalise and sideline him for having made his complaints. He was not trusted as a 'team player' and he was regarded as a potential threat to the organisation. This was detrimental to his career and essentially labelled him as a troublemaker and a complainer with a bad attitude. Alternatively, she asked the Tribunal to exercise its discretion under Section 68(6) and extend time so as to allow the Tribunal to consider each complaint."
[4]Having examined each of the 47 complaints made by the Applicant, the Tribunal concluded as follows:
"84 The Tribunal found that none of the allegations were well founded. It, therefore, decided that there was no need to determine whether there was a course of conduct or to what extent the Chief Constable was liable for the acts of his officers."
The Appeal[5]Against that decision the Applicant appeals and a cross appeal was originally lodged but not pursued on behalf of the Respondent. Directions sending this matter to a full hearing were given at a preliminary hearing by Mr Justice Wall and Members on 8 October 2002, superseded by directions given by me on 28 March 2003, by the Registrar on 9 July 2003 and by His Honour Judge Serota QC and Members at an aborted full hearing on 4 August 2003. It became apparent that the two days fixed for the hearing before Judge Serota's EAT were inadequate. Directions were given for the further preparation of the case, which included the drawing up of a schedule containing each of the Applicant's complaints with his submissions, matched to the Respondent's submissions. That has been complied with and has proved very useful. The issue of costs arising from that aborted hearing, and from an initial step in the proceedings, was left open and is the subject of a decision which we make at the end of this judgment.[6]It is important to note that the EAT at that hearing recorded as follows:
"The Appellant does not contend the permission granted to re-amend the further and better particulars by the Employment Tribunal, gave permission to add new and free-standing complaints but was limited to providing particulars of an existing complaint of a continuing act of discrimination."
By reason of that concession, the Respondent dropped his cross-appeal. Employment Tribunal Procedure[7]The Originating Application was presented on 23 August 2000. The Notice of Appeal was lodged on 24 April 2002. The oral hearing before the EAT following revised time-tables and documentation was completed following four days' argument on 17 October 2003. Unsolicited further written submissions were presented on behalf of the Respondent on 1 December 2003, to which the Applicant replied, which we have taken time to consider, and which caused this judgment to be given rather later than we intended. The events to which this complaint relates began in April 1983 when the Applicant applied to join the Derbyshire Police Force and was accepted on 7 November 1983. For the purposes of the appeal, surviving complaints date from 8 November 1985. It must be said that no complaint is made by either party about the delays in the hearing of the Originating Application or the appeal.[8]The content of the Applicant's case grew incrementally. In his Originating Application he complained that, despite coming top in the Sergeant's exams and second in the Inspector's exams in the Derbyshire Constabulary in respectively 1988 and 1990, he was not promoted. He said "over the years I have complained on several occasions of being treated less favourably than other officers with less or similar experience and qualifications". His central case was that "advancement was prevented by the management ... because of my ethnic Afro-Caribbean background". He contended that his complaints were ignored until December 1999 when the management agreed something would be done in the form of an action plan, but this was abandoned on 29 June 2000 leading the Applicant to say as follows:
"This was the latest event in a long line of events where I have systematically been prevented from making any progress or advancement ... ."
[9]By a direction of the Tribunal, he provided further particulars on 29 November 2000 itemising 37 "acts of discrimination". His central case was "since 1986 I believe I have been denied promotion ... I believe this to be a case of racial discrimination contrary to Section 1(1)(a) of the Race Relations Act 1976". There then followed detailed particulars of 37 complaints. Permission to amend the Originating Application so as to include all of those complaints was given on 28 February 2001 by a differently constituted Employment Tribunal. But it did not give leave to admit the additional matters as causes of action, for it said, "It is arguable that all the matters ... extend over a period and can thus be treated as done at the end of the period extending with last complained of" [sic].[10]The final Tribunal held that the effect of that decision was to admit those additional matters "only as evidence of a course of conduct". That is because the time limit for presenting a claim of race discrimination is three months, subject to a discretion, if it is just and equitable to do so, to extend time: see Section 68(1) and (6). However Section 68(7) provides as follows:
"(7) For the purposes of this section – (a) ... (b) any act extending over a period shall be treated as done at the end of that period."
[11]Following this clear ruling, however, three further requests were made by Counsel on behalf of the Applicant to adduce additional further and better particulars on 12 and 13 June 2001 ie at the start of the oral proceedings. The effect of these three further applications, which were granted by the Tribunal, was to add ten further complaints and some other matters. They were inserted in sequence into the first set of further particulars and given a suffix eg complaint 22A. The Respondent considered appealing this Decision, but decided to continue the proceedings. Extended Reasons were sought which appear at the end of the Decision under appeal. The Tribunal's decision in respect of those three additional sets of particulars was "that those complaints were to stand as complaints which may found the basis for a remedy". It decided that the 37 complaints were to be treated as evidence of a course of conduct within Section 68(7). It exercised its discretion under Section 68(6) so that the additional 10 matters were treated as free-standing acts of discrimination made within time, albeit extending back to 1983 (see complaint 2A racial abuse at Chaddesden Police Station). The additional 10 complaints did not differ in their character from the original 37 and there was no logic for treating them differently. It was no doubt for that reason that the Respondent considered appealing at the time and did enter a cross appeal after the final decision was promulgated and appealed by the Applicant.[12]Notwithstanding that clear division of treatment, the Tribunal went on to deal with each of the, now 47, complaints as though it were an allegation of a discrete act of discrimination and made findings of fact together with findings on some or all of the components necessary for a finding of unlawful race discrimination. This analytic approach was advanced in the submissions of both Counsel. Every allegation was dismissed. These included allegations of victimisation under Section 2 although, as we pointed out above, the Applicant in his Originating Application cited only Section 1. No point was taken about this. The Tribunal then ostensibly stood back and said in its paragraph 84 that there was no discrimination.[13]It is that conclusion which is at the centre of this appeal. The concession before Judge Serota's aborted EAT can now be understood. For the purposes of the appeal, the Tribunal's decision is treated as a decision under Section 68(7) relating to an allegation of racial discrimination and victimisation extending throughout the Applicant's career at Derbyshire. The Respondent's dissatisfaction with the Tribunal's decision as to the admission of the 10 additional particulars, which took the form of a cross-appeal, was not pursued and is dismissed on withdrawal. The final Employment Tribunal thus overrode the decision of its predecessor in respect of the 37 complaints and regarded them, consistently with its own decision in respect of the 10 new allegations, as constituting free-standing claims capable of adjudication and, if necessary, remedy, all being (on this footing) within time. The legislation[14]The relevant provisions of the legislation are Section 1(1) of the Race Relations Act 1976 which provides as follows: (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons." This is direct discrimination.[15]Section 2(1) provides for victimisation and is as follows:
"(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 that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
[16]Section 3(4) provides for comparators:
"(4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
[17]Racial grounds are defined by Section 3(1) as including "colour, race, nationality or ethnic or national origins".[18]The particular forms of unlawful discrimination, in respect of serving employees, are found in Section 4(2):
"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee - (a) in the terms of employment which he affords him; or (b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (c) by dismissing him, or subjecting him to any other detriment."
[19]Police Service was at the time regulated by Section 16(1) which provides as follows:
"(1) For the purposes of this Part, the holding of the office of constable shall be treated as employment – (a) by the chief officer of police as respects any act done by him in relation to a constable or that office."
Proceedings under the Act against a chief officer of police are to be brought against him or her by virtue of Section 16(3).[20]The liability of employers for acts of discrimination was contained in Section 32(1) and (2): "(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act ... as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval. (2) Anything done by a person as agent for another person with the authority ... of that other person shall be treated for the purposes of this Act ... as done by that other person as well as by him.[21]The practical effect of the judgment of the Court of Appeal in Chief Constable of Bedfordshire Police v Liversidge [2002] ICR 1135 is that claims made against a chief constable in respect of acts of race discrimination done by an officer on a fellow-officer may not be maintained. That caused an amendment to be made to the 1976 Act by the insertion of Section 76A with effect from 2 April 2001 as a result of the Race Relations (Amendment) Act 2000 , Section 4, effectively allowing such claims to proceed.[22]The Tribunal heard unchallenged evidence that the relationship of a constable with the chief constable is regulated by Police Regulations, some of which were put before the Employment Tribunal, but not before us. So far as is relevant, the gist of these Regulations includes an open system whereby an officer may see records of staff appraisals, interviews, training needs and so on. It was the general practice to discuss such reports with an officer. It seems likely, we can put it no higher, that a failure to observe the Police Regulations would be a breach of duty and a breach of the terms of engagement of a police constable.[23]By 1987, the Respondent had an Equal Opportunities/Recruitment and Selection Training Programme and on 5 January 1988 the Respondent sent out an Order Policy and Recruitment: Ethnic Recruitment indicating Derbyshire's need to recruit more officers "from the ethnic minorities". On 7 November 1989, Home Office Circular No.87/1989: Equal Opportunities Policies in the Police Service was issued to the Respondent expressing the Home Office's commitment to equal opportunities and setting out a framework. Included at annex A was a checklist for the implementation of equal opportunities policies which contains the following:
"(j) Is the deployment of ethnic minority officers affected in any way by their racial background (eg are they deployed predominantly in areas with substantial minority communities or to duties, such as recruitment, where their background may be helpful to the force but may be detrimental to the development of their own careers)?"
The answer to this question should be: no. The Respondent would be expected to follow such Home Office Circulars. The appeal[24]Over the course of the Applicant's 17 year career preceding the Originating Application, 47 complaints form the basis of the Application as particularised. Following the judgment in Liversidge (above) complaints involving officer–on–officer complaints are not pursued on appeal. Apart from those, every other complaint is pursued, so that 33 complaints were the subject of the schedule as directed by Judge Serota. These 33 complaints fall within one or other of the five principal grounds of appeal which can be summarised as follows:(1) The Tribunal misdirected itself in failing to address what is properly to be regarded as a complaint by the Applicant ("the formal complaint issue").(2) The Tribunal failed to address the Applicant's complaints that "secret reports" had been made upon him and constituted racial discrimination and/or victimisation ("the secret reports issue").(3) The Tribunal failed to decide whether the Respondent's admitted failure to apply aspects of its equal opportunities policies and Home Office guidance constituted the basis for the drawing of an inference of racial discrimination and/or victimisation ("policy documents issue").(4) The Tribunal failed to address the Applicant's case that the complaints were evidence of a practice, policy or regime operating throughout the Applicant's career ("the continuing act issue").(5) The Tribunal failed to set out its reasoning on each of the complaints to the standard required in Meek v City of Birmingham District Council [1987] IRLR 250 CA ("the adequacy of reasons issue").[25]The failure to give adequate reasons, it is contended, infects 31 out of the 33 issues live on appeal. No allegation is made of perversity. It is worth pointing out that the number of separate complaints appears high because of the system within the Respondent's organisation. So, for example, an interview with the Applicant, or an appraisal of him, is noted, which is placed on the file, is referred up through the command structure and others act or comment upon it. Thus at each layer, the Applicant contends, an act of discrimination occurred against him although the actual sources of complaint are substantially fewer than the record shows.[26]The narrative which follows misses out those aspects which are not pursued on appeal, and gives less emphasis to the repetition of an alleged act of discrimination once a note has been placed on the Applicant's file. In its rejection of many of the Applicant's complaints the Tribunal makes a judgment about the relevant officer of the Respondent who has given an opinion or made an assessment. The adjectives, honest , accurate , reasonable are used frequently and interchangeably and it would not be right to draw a distinction between any of them, or any combination of them, for when the Tribunal does not give such a blessing, it says so in terms. It also decides that the Respondent or his officers gave a "reasonable" or "appropriate" response. These judgments affect complaints No. 5, 12, 12A, 13, 16, 18, 22, 22B, 25, 27A (3 times) 28, 33; and 10, 17, 20 and 22. There is of course a difference between an honest and a reasonable belief, for as many directions to juries make clear, a witness can be credible, honest, yet mistaken: see Reg v Turnbull 63 CR App R132. this is what Sedley LJ was referring to when he imported the concept into discrimination law in Anya [2002] ICR 847, 861D at paragraph 25 The facts[27]The Respondent was anxious to assert before the Tribunal and before us that things have changed markedly in police service over the last 20 years. At the end of the first week of the Tribunal proceedings the Respondent made the following admission:
"6 … 'Like any large organisation the Derbyshire Constabulary accepts that its ethos and objectives will not always have been embraced by all of those in its service. The Chief Constable admits that it is likely that, in the early years of his service, PC Fearon will have heard racially abusive and/or insulting terms used in his presence and even, on occasion, towards him. This was not acceptable, even at that time, and it is certainly not acceptable now and the Chief Constable offers his apologies to PC Fearon for any hurt he will have suffered. The Chief Constable is pleased to note that PC Fearon makes no allegations that such language was used at any time after 1987/1988'."
[28]The Applicant joined the Derbyshire Police Force on 7 November 1983 and served a two-year probationary period at Chaddesden. He was then moved to the City Centre. That decision was influenced by the Applicant's race. The Applicant was unhappy since he lived near the City Centre. The Applicant's fear that he would be subjected to threats of violence came true. The Tribunal found that other officers were subjected to threats and were treated in the same way[29]A year later, on 11 October 1986, Sergeant Smith wrote an appraisal on the Applicant which did not include positive factors including that the Applicant had received a Chief Constable's commendation. The report was made while the Applicant was absent, but the Tribunal found there was no significance in this. He was treated no less favourably than others. The Applicant complained about this appraisal and Sergeant Smith's comments, and suggested that they were racially motivated. Inspector MacDonald, to whom he had complained, rejected the suggestion and agreed with Sergeant Smith. No specific complaint of race discrimination was made.[30]In January 1987, Commander Hollands interviewed the Applicant. They discussed the appraisal report and the Applicant contended it was unbalanced and unfair. He did not complain of race discrimination. Commander Hollands decided it would be sensible to transfer the Applicant to another section. The Tribunal found this was made for sound operational reasons. He told him he would be placed on special report which requires monitoring. An allegation of victimisation was dismissed by the Tribunal. He had been treated in the same way as other under-performing officers were. On transfer, the Applicant was under the supervision of Inspector Cantrell. In the section was PC Lee, who was a bigot and a bully and rude to most people. He made racist and sexist remarks. The remarks were not directed at the Applicant. The Applicant did not complain. Following a later allegation by another officer, PC Lee was dismissed. The Tribunal held that Inspector Cantrell's failure to take action against PC Lee did not constitute less favourable treatment on the ground of race.[31]After that allegation on 2 March 1987, Inspector Cantrell submitted a report indicating that change was needed in the Applicant's approach for "he has not yet integrated with his colleagues. He does not converse easily". This report was sent to Commander Hollands. The Tribunal noted that it was the Applicant's contention that he had complained to him about Sergeant Smith's report being racially discriminatory and there was a failure to take action over that complaint which constituted victimisation. The Tribunal found there was no less favourable treatment, nor any evidence of a protected act. By 6 April 1987 (now) Chief Superintendent Hollands interviewed the Applicant and took him off special report having resolved that "a degree of personality problems occurred".[32]Shortly thereafter on 13 April 1987, Superintendent Bartram referred the Hollands report to Deputy Chief Constable Weselby stating:
"This is the first Staff Appraisal for Constable Fearon, who is an Afro-Caribbean Officer, and this has been delayed owing to Chief Superintendent Hollands having some doubts about the Officer's ability. Constable Fearon is a mixed bag and, having met him, I believe he is filled with all kinds of doubt about his role, his cultural ties and his ability to cope in the busy city centre area where he is well known."
The Applicant complained that this report blamed him for his problems because of his colour. The Tribunal disagreed and found it a genuine attempt to draw attention to the Applicant's difficulties in order to ensure that appropriate action was taken. There was no less favourable treatment of him.[33]On 29 January 1988 the Applicant passed the national promotion examination to the rank of Sergeant, coming top of Derbyshire. Another officer, PC Stephenson, performed acting-up duties to Sergeant level, although not qualified by examination. He continued to act up. Another officer, PC Penman, was asked to become a tutor constable. Inspector Cantrell considered the Applicant for both of these but held that he did not have the communication skills necessary. He decided the Applicant was neither adequately experienced nor well enough integrated into the shift to command the respect of other officers. He noted the Applicant's inability to drive was a disadvantage. The Tribunal accepted this explanation and held there was no less favourable treatment of the Applicant.[34]The Applicant complained about Chief Superintendent Hollands' report but did not specify race discrimination. A comparator, PC Holmes, was held not to be appropriate and an honest assessment was made of the Applicant's performance and ability.[35]On 29 January 1988, the Applicant was eligible to apply for a place on a special accelerated promotion course because he was within the top 200 candidates in the national Sergeant's examinations. Superintendent Cameron assessed him as having "no outstanding qualities and on his performance so far I consider him to have a limited service calling. He is not, in my view, Special Course material". That, together with its endorsement by Superintendent Dallman, was held by the Tribunal to be an honest and reasonable assessment. In fact, the Applicant attended an interview for this which was unsuccessful, for the Applicant "lacked the potential" for the course in the judgement of those interviewing him.[36]Within weeks, on 12 May 1988, following a press release by the Respondent, the Derby Evening Telegraph published a feature article entitled "Multi-Racial Bobbies Plea". The Applicant was featured under a heading " Vas is top of the cops: the best advert for black police is a successful black bobby. You need look no further than Vas Fearon to find one. He's just come top of the county force ". The Tribunal held that there was no unfavourable treatment in this since it recognised the Respondent's policy of trying to promote recruitment of officers from ethnic minority communities.[37]Also at about this time, the Applicant mentioned to Inspector Cantrell his concern about the lack of opportunity to advance his career and this was reported to Chief Inspector Bown. On 2 June 1988, he interviewed the Applicant. Chief Inspector Bown noted that the Applicant "made it clear to me that he considered that he had not been given the opportunities which were commensurate with his ability". Examples were cited of lack of acting-up, not being used as a tutor-constable, failure to deploy him to the shoplifting squad". Chief Inspector Bown accepted some but not all of these concerns. He commented on the need for improvement in the Applicant's interpersonal skills. Although the Applicant did not mention race, Chief Inspector Bown counselled the Applicant that he should not conclude that race was the explanation for his problems. The Applicant accepted that explanation and took the matter no further.[38]The Applicant contended that at this meeting he was careful not to mention race and the Tribunal found that he had made no complaint of racial discrimination. Chief Inspector Bown was an intuitive and caring man who was trying to address the Applicant's issues. He understood that the Applicant might perceive that a possible cause was race discrimination. His report was honest and accurate and there was no evidence of less favourable treatment or of a protected act.[39]Shortly thereafter, on 10 June 1988, Deputy Divisional Commander Cameron wrote to the Respondent Chief Constable indicating that the Applicant was "only average" in performance and some skills such as personal communication were much lower. He did well in examinations. Deputy Divisional Commander Cameron supported Chief Inspector Bown's assessment. The Tribunal held this was an appropriate response from a chief officer who would, if a complaint of race discrimination had been made, have referred it to investigation. The Tribunal found that the absence of such complaint made it unnecessary for there to be an interview with the Applicant on this subject. There was no evidence of less favourable treatment or of a protracted act.[40]On 24 October 1988, Chief Inspector Bown wrote an appraisal report on the Applicant indicating that he experienced "difficulty in communicating with and relating to some of his colleagues. He is something of a loner which is partly due to personality and partly due to reaction to his colour". It was agreed that he would be transferred but not to Derby East for the community might react negatively to him as he lived in the area. The Tribunal held this was an honest and reasonable report and there was no evidence of either less favourable treatment or of a protected act.[41]On 14 November 1988, steps were taken to transfer the Applicant to a shoplifting squad for three months and then to Allestree Police Station which he duly did at his request in February 1989. During his time at Allestree he acted-up.[42]In February 1990, he passed the national inspector promotion examination to the rank of inspector.[43]In May 1990, the Respondent decided to transfer the Applicant to St Mary's Gate Police Station. Sergeant Catlow at that station, before the Applicant's arrival, said this (paragraph 9 of his witness statement):
"I do recall that PC Fearon's reputation preceded him. I had never met him, but it was well known within Derby Division that PC Fearon was not just sensitive about his colour but seemed to make an issue of it. ... We were sensitive to the fact that we needed to be careful about PC Fearon's perception of our actions. We felt it would be walking on egg shells."
[44]At the same time, Inspector Smalley warned the shift that a black officer was coming and that they must be careful because the officer would complain. The Tribunal held that there could be no criticism of either of the officers for those comments. The Tribunal dismissed the Applicant's complaint that, notwithstanding these two comments made by the officers, they had deployed the Applicant to be paired on duty with PC Brown who was a racist and not a credible witness. The Tribunal found that such pairing occurred no more than with any other officer qualified to drive and did not constitute less favourable treatment. The Tribunal held that the complaints about the behaviour of Sergeant Catlow and Inspector Smalley were inadequate.[45]On 23 April 1991, Deputy Chief Constable Weselby wrote a report on the Applicant in which he criticised the Applicant's lack of communication skills. The report itself was triggered by a report submitted by Superintendent Gee-Pemberton concerning what the Tribunal held to be a course being undertaken by Superintendent Gee-Pemberton. The Applicant contended that this report was, on the contrary, produced as part of a survey of ethnic minority officers to establish their concerns about racial discrimination as a prelude to the introduction of a new grievance procedure instigated by Deputy Chief Constable Weselby and the Chief Constable. There is, in our view, considerable force in that submission.[46]In any event, the report was official and did examine the attitude of ethnic minority officers to service in the Derbyshire Force. As well as his formal report he produced a supplementary report in which he identified the Applicant as the officer who was most likely to complain that he had been treated less favourably on the ground of his race. The Applicant, in his interview, made no formal complaint. Chief Superintendent Cameron agreed with Superintendent Gee-Pemberton's assessment. The Tribunal held that the Weselby report was honest and reasonable. Chief Superintendent Cameron recognised that it had been concluded that the Applicant's supervisors may have been prejudiced against him. No enquiries were directed to ascertain whether that was in fact the case because the Applicant had made no complaint. The Applicant contended that the Weselby report was based on previous, racially discriminatory, negative reports and the Tribunal should draw an adverse inference from the late disclosure of the Gee-Pemberton report and certain statements which were said to be misleading. The Tribunal declined to do so. At this stage the Tribunal said as follows:
"50 The Tribunal reviewed its findings of fact in relation to the complaints prior to 23 April 1991 and noted that the relevant reports were neither racially discriminatory nor unsubstantiated. Deputy Chief Constable Weselby's report was a reasonable response to the Gee-Pemberton report which was reached after discussion with Chief Superintendent Cameron and a consideration of earlier reports. The Tribunal decided that there was no evidence of less favourable treatment and ordered that this complaint be dismissed."
[47]Around 14 June 1991, the Applicant was late for duty and did not record it. Sergeant Kennedy made an entry in the Applicant's notebook. This "report" is the source of a number of complaints by the Applicant. The Tribunal held that this and other reports were made by Sergeant Kennedy because the Applicant had alleged that Sergeant Kennedy had discriminated against him. The Tribunal held that there was no evidence that these reports would not have been written by Sergeant Kennedy after a similar complaint by another officer, and the Applicant was not treated less favourably. Chief Inspector Kilbane wrote that, "Constable Fearon has still sought to cry 'foul' and claim discrimination. The allegation is pure nonsense and should be totally disregarded". The Tribunal upheld that approach. Superintendent Keen became involved, supported Sergeant Kennedy and found that "Constable Fearon is over-sensitive regarding discrimination and it seems to lead to irrational reactions". The Tribunal upheld that as being neither false nor inaccurate. These reports were submitted to Chief Superintendent Cameron who treated the matter as now closed.[48]On 11 May 1992 Superintendent Keen submitted a report on the Applicant to Deputy Chief Constable Weselby. Superintendent Keen had interviewed the Applicant a year earlier (24 June 1991) following a report of the Applicant's poor performance while acting-up. As a result, or at least as a matter of fact, he was transferred to the enquiry unit. The Tribunal found that the basis for the transfer was explained and that Superintendent Keen's report was purely factual, honest and accurate without an expression of opinion. The Tribunal found that this was part of an annual monitoring report instigated by the Gee-Pemberton report. It did not contain any evidence of less favourable treatment or evidence of a protected act.[49]Two days later on 13 May 1992, Deputy Chief Constable Weselby wrote a report concerning the Applicant and PC Patrice who was the other black officer within the Derbyshire Constabulary. The report was critical of both of them. It was part of the monitoring process following the Gee-Pemberton report. The Tribunal found it was standard practice for such developmental reports to be made.[50]On 3 June 1992 Chief Inspector Chalkley met the Applicant. The Tribunal found that Chief Inspector Chalkley was not a wholly satisfactory witness. He did not counsel the Applicant and was unreasonably dismissive of him "partly because of his own attitude. He [CI Chalkley] did not seem to be the officer best equipped to deal with a difficult and sensitive area". The Applicant contended that he had complained about race discrimination but the Tribunal found that it was "significant" that he made no specific complaint. Thus it held there was no obligation on Chief Inspector Chalkley to investigate. Chief Inspector Chalkley noted that the Applicant had suggested that he was "the first ethnic officer to pass both the Sergeants and Inspectors qualifying examinations and that he had been treated unfairly for several years ... ". Chief Inspector Chalkley criticised the Applicant's ineptitude and attitude and said, "In his own words he feels he is 'marked man' ... ". His performance would be reviewed in 12 months' time. The Tribunal found this was an accurate account of the meeting. It rejected the Applicant's complaint that the Respondent deliberately avoided addressing complaints of race discrimination. This report was sent by Chief Superintendent Cameron to Deputy Chief Constable Weselby. A memorandum covering it concerned, in addition, PC Patrice and indicated that they would both continue to be monitored. The Tribunal found that this linkage in the same memorandum was "because they were both serving in 'D' Division", and rejected the allegation that they were singled out because the Applicant complained of race discrimination.[51]In January 1993, the Applicant applied for a promotion. He was graded by Sergeant Szabo. Chief Superintendent Cameron refused to recommend him for promotion commenting, "It is not a question of ability with this officer, rather one of attitude". A number of other shortcomings was identified which the Tribunal found to be a reasonable reflection of Sergeant Szabo's assessment. The comment of Chief Superintendent Cameron reflected a history of criticisms which "have previously been identified and addressed". The Tribunal rejected the Applicant's complaint that this failure to support his application for promotion was based on racial discrimination or an act of victimisation. It upheld Chief Superintendent Cameron's comments as reasonable.[52]Between 28 December 1992 and January 1994, the Applicant was keen to go on a Tutor Constable's course. As a result of a report by Inspector Loades, he was stood down from a course he was due to attend for operational reasons. She, Inspector Loades, attended a meeting with Chief Inspector Chalkley concerning the training of the Applicant when it was agreed that if he were given assistance "it would soon be noticed if members of the training staff were regularly visiting Littleover Police Station and having private consultations with the officer. This could well have the effect of putting the officer 'under the spotlight' something he appears not to want himself".[53]At the same time, Sergeant Robertson wrote a report indicating that the Applicant had a cynical attitude towards the Police Force and difficulty in communication. Also, Inspector Loades wrote a report dealing with three complaints she had about him indicating in her opinion that he was unlikely to improve his attitude. The Tribunal held this was an honest account of her view. It was expressly recommended by Chief Inspector Chalkley, in a report of 15 July 1993 to Assistant Chief Constable Wood, that no steps should be taken to apprise the Applicant of their opinion for "it may be considered by other officers to be unfair to them for Constable Fearon to be singled out, for obvious reasons and in today's climate of equal opportunities, I think they may well be a good point". This report was largely accurate although there was some reservation by the Tribunal.[54]Assistant Chief Constable Wood wrote on 10 August 1993 to Chief Superintendent Cameron indicating that he would continue to monitor the Applicant's progress. He, however, did not share Chief Inspector Chalkley's reason based on equal opportunities (see above) for not approaching the Applicant. The Tribunal found Inspector Loades was extremely reliable and her decision to remove the Applicant from the Tutor Constable course was taken for valid reasons. As for Chief Inspector Chalkley, the Tribunal found that his reasoning demonstrated a very poor understanding of an employer's ability to take positive action in addressing the shortcomings in an employee's performance without contravening the 1976 Act. It found he behaved unreasonably in aligning himself with criticisms of suggestive positive action in the Applicant's case, and was possibly potentially acting unlawfully. Since Assistant Chief Constable Wood discounted this, the Tribunal found there was no unlawful act or it was actually rectified.[55]By his report of 10 October 1993 indicating further monitoring, the Applicant complained that Assistant Chief Constable Wood had acted unlawfully and treated him less favourably on the ground of race. The Tribunal said this: "The monitoring of the applicant was instigated following the Gee-Pemberton report. It was standard practice for some officers to be monitored. The Tribunal decided that the decision to continue monitoring was sensible in the light of the submitted reports. ... Further he [Assistant Chief Constable Wood] could not be criticised for failing to investigate the applicant's complaints because there were none." [see paragraph 70][56]In January 1994, the Applicant applied for promotion. Sergeant Robertson graded him; Chief Superintendent Cameron did not recommend him. He indicated that the Applicant was academically sound but his skill areas needed further attention. The Tribunal held this assessment was honest and reasonable. The Applicant contended that Chief Superintendent Cameron did not support his application because the Applicant had previously complained of racial discrimination. The Applicant had contended that Chief Superintendent Cameron had told him that he would have to change his attitude. The Tribunal found that Chief Superintendent Cameron's comments were fair and reasonable and it had "no evidence of a protected act".[57]On 26 March 1994, a complaint had been made by a member of the public. The matter was resolved satisfactorily. A report was prepared for Chief Inspector Chalkley for information. It went on to the Applicant's personnel record. The Tribunal rejected the Applicant's assertion that Chief Inspector Chalkley had been told that the decision was taken because of the Applicant's race and his previous complaints. The Tribunal found no evidence of that.[58]On 11 May 1994, Chief Inspector Chalkley informed the Applicant that it had been decided that his name should not be included on those officers considered suitable to carry out acting-up duties because of a lack of interpersonal skills. The Applicant said he was unhappy. The Applicant placed some limitations upon his agreement to do acting-up. Chief Inspector Chalkley prepared a report which was described by the Tribunal as accurate. The Applicant did place restrictions on his willingness to act-up. The Tribunal decided there was no less favourable treatment.[59]In 1997, 1998 and 1999 the Applicant unsuccessfully applied for a promotion but failed at the "carousel" stage of the internal promotion process.[60]On 18 June 1999, the Applicant began a period of sick leave and on 8 November 1999, at a meeting with Dr Calvert, the Force Medical Officer, complained that his career was not progressing and sought early retirement. This was not possible but the doctor was to contact Inspector Gibson.[61]On 11 November 1999 Inspector Gibson met the Applicant with a representative on his behalf. The Applicant contended that he had not been promoted and the Force had done nothing to develop his career on the grounds that he was Afro-Caribbean and that the Force was "riddled with institutional racism". No formal complaint was made of racial discrimination and no mention was made of previous complaints of racial discrimination. The Tribunal accepted that the Applicant had made general complaints of race discrimination but did not provide particulars. In those circumstances the Tribunal decided there was neither evidence of less favourable treatment nor of a protected act.[62]On 2 December 1994, Sergeant Thandi, Chairman of the Black Police Officers Association, got into touch with Ms Thomas, the Force's Fairness at Work Adviser, on behalf of the Applicant. She then met the Applicant on 7 December 1999. The Applicant outlined his many concerns and at the end of the meeting a proposed a course of action which involved drawing up an action plan. She submitted a report for the urgent attention of Assistant Chief Constable Wood. The plan involved: making the Applicant a temporary Sergeant, career counselling to be provided, he be provided with a mentor and he be allowed to attend two specific courses. Progress would be reviewed on a monthly basis. On 9 December 1999, Assistant Chief Constable Wood approved the proposal. On receiving this on 20 December 1999 the Applicant was very pleased since it reflected his situation well.[63]In the New Year 2000 attempts were made to implement the plan but he would have to return as a Constable following his period of absence. The Applicant indicated that 11 officers had been given temporary Sergeant rank during 2000. The Tribunal made no findings on that. Divisional Commander Hurrell met the Applicant with Ms Thomas on 9 March 2000 and on 30 March 2000 he accepted that the Applicant "may have been the victim of discrimination". The Applicant rejected an offer to act up on a long term basis. This was also made in respect of PC Sangha who at this time was being supported by the Applicant in a claim she was making. Divisional Commander Hurrell was dismissive, indicating that this was not the correct forum in which the Applicant should raise his matters. In a similar meeting on 9 May 2000, the Applicant indicated that he would follow PC Sangha in pursuing a formal grievance, for the comment above about victims of discrimination applied equally to her. The Applicant complained that Divisional Commander Hurrell had failed to carry out any steps following such complaint. The Tribunal accepted Divisional Commander Hurrell's evidence that the Applicant did not state that he wanted to make a formal complaint of race discrimination. The Tribunal decided there was no evidence of less favourable treatment.[64]On 19 June 2000, PC Sangha met Assistant Chief Constable Hancock to discuss her grievance. Inspector Childs, on behalf of the Police Federation the appropriate association, was also there with Divisional Commander Hurrell. By a letter of 21 June 2000, Inspector Childs informed Assistant Chief Constable Hancock that he had been asked to represent the Applicant on his complaint previously made to Divisional Commander Hurrell. The issue was whether or not the Derbyshire Constabulary would comply with the agreement approved on 10 December 1999 to advance his career. On 29 June 2000, Assistant Chief Constable Hancock replied, reciting the history of events following the action plan and the opportunities available. He concluded that he would look for further suitable opportunities for him. The Tribunal found that a reasonable reader of the letter could not conclude that it stated that the action plan would not be implemented. In response, Inspector Childs, on 6 July 2000, outlined the Applicant's case of unfair treatment and his threat to go to an Employment Tribunal which he did on 29 August 2000 by presenting a complaint. The Applicant's submissions[65]On behalf of the Applicant Ms Brown made submissions in relation to the five principal grounds of appeal (paragraph 24 above). (1) The formal complaints issue[66]This issue relates to the victimisation claim. It was contended that the Tribunal failed to recognise that the claim of the Applicant was that there was an environment in Derbyshire Constabulary in which complaints were discouraged; and thus the Tribunal wrongly concerned itself with the absence of a formal complaint made by the Applicant to the Respondent. No particular form is required for a person to be complaining and where it is complained of that there is a culture within the organisation discouraging complaints, this should be recognised. Words of discouragement can constitute an act of discrimination: Simon v Brimham [1987] IRLR 307. The Applicant made complaints of racial discrimination which had been disregarded and were not investigated. The culture of the Derbyshire Constabulary was hostile to the making of complaints against supervisors or senior officers and there was discouragement, for a complaint might influence a particular constable's career path. Given that the Tribunal found that the Applicant had made it clear that he believed his career was affected by racial discrimination, that should have led to a finding to that effect. Given that the Respondent was aware that the Applicant believed he had been treated less favourably, the Respondent was under an obligation to investigate and take seriously such concerns. Failure to so investigate can constitute discrimination, provided that the reason for the failure is "racial grounds": Coyne v The Home Office [2000] ICR 1443 CA.[67]The Applicant alleged continuing discrimination and victimisation throughout his service for he had been exposed to "a predictable detriment, which was race specific" and "a failure to investigate which might permit future conduct which in turn rendered the employer liable ...". That is a citation from the judgment of Morison J in the EAT, cited with approval by Sedley LJ in the Court of Appeal at paragraph 12 in Coyne . It was contended that the Tribunal failed to deal with the submission to the effect that evidence had been led by the Respondent that if an officer brought an issue such as race discrimination to the attention of a senior officer, if that officer or manager took the view that there was no merit in the complaint that would be the end of it. It was submitted that that was an impermissible approach. (2) The Secret Reports[68]The Applicant complained that his file complained a number of "secret reports". The Respondent was unable to challenge the evidence of the Applicant that when, for the purposes of the Tribunal hearing, disclosure was conducted 28 documents relevant to the Applicant were not found on his file. Of these, 14 are race specific. Since the evidence before the Tribunal was that files were to be made available pursuant to Police Regulations, the failure to keep such open reports on the Applicant constituted discrimination and detriment.[69]It was further contended that the Applicant was being monitored, not because of performance issues but because he had raised concerns about racial discrimination affecting his opportunity for advancement. The evidence of Mr Moore on behalf of the Respondent was that officers should be informed of the substance of reports and have opportunities to make representations. This was not done in respect of "the secret reports". (3) The Policy documents issue[70]The Applicant contended that there was an abundance of policies indicating, for example, that there should be equal opportunities in the selection of officers for "acting-up" duties and deployment. There had been departures from such established policies eg by the deployment of the Applicant on the grounds of his race into an area where there was a larger minority population. (4) The continuing act issue[71]It was contended that the Tribunal failed to address the Applicant's case on the central issue of there being a regime throughout his career. This was an error which led to others. It took a fragmented approach to each of the decisions and failed to demonstrate that it had stood back from all of these in consideration of the central issue. It was contended that the Tribunal made decisions on each of the 47 complaints which influenced its decision that there was no continuing act. This was an error for the Tribunal failed to recognise what the central complaint of the Applicant was. It had to be borne in mind that the Respondent's case about the Applicant was that he was "average" not that he was poor. The point about the secret documents is that they are on the file and visible to all officers considering the Applicant's case at any time during his career (but not to him).[72]As to the question of a protected act, this would include not just allegations but consideration of the state of mind of the alleged discriminator.[73]As for the Respondent's contention that the whole claim was out of time since the Tribunal had decided that in respect of the last complaint there was no less favourable treatment, it was contended that it is not necessary to link an Originating Application to the last event in a series. The issue here is the existence of a regime or policy illustrated by various acts so that time would only begin to run on the cessation of the regime or policy. A failure to investigate a matter can continue throughout a relationship: Littlewoods Organisation v Traynor [1993] IRLR 154. (5) The adequacy of reasons issue[74]It was contended that the Tribunal failed to discharge its duty under Meek v City of Birmingham District Council [1987] IRLR 250 CA to provide adequate reasons for its decisions for or against each of the matters, or alternatively witnesses, in issue. Reliance was placed on Harrison v London Fire & Emergency Planning Authority (EAT/0477/02/DA) unreported 13 May 2003. The Tribunal must make necessary findings of fact, not only in relation to specific comments but also, following Harrison , to the issue of whether there was a culture or type of behaviour not directed specifically at the Applicant but which created a hostile environment. No finding had been made on this matter.[75]The Applicant's contentions were set out in a schedule pursuant to Judge Serota's direction. This set described the ways in which on each of the 47 complaints the Applicant contended the Tribunal had failed to make a decision or to give adequate reasons for it. The Respondent's submissions[76]On behalf of the Respondent it was contended by Mr Bourne that the Tribunal had done the task required of it by the parties, that is, to examine each of the events. It had done so by reference to the four stages required in Qureshi v Victoria University of Manchester [2001] ICR 863 EAT, cited with approval in Anya v University of Oxford [2001] IRLR 377 CA. The Tribunal heard evidence from the Respondent's witnesses and accepted generally, in respect of each one, the conclusion of the relevant officer was honest and reasonable and accurate. Given that each of the complaints was tested in sequence against the stages required by Qureshi and the Applicant failed at one stage or another, there was nothing to view when the Tribunal stood back pursuant to conduct an overall appraisal. Using a supermarket image, Mr Bourne said that since on a review of all the historical complaints none had found their way into the take-out basket, there was nothing to add up at the check-out.[77]The Tribunal's approach to the Applicant's "complaints" was consistent and correct in the light of its findings that he had made no formal complaints.[78]Similarly, in respect of victimisation, the Tribunal's approach was correct since there was no finding that the Applicant had committed a protected act. Alternatively, since the Applicant asserted that he had made complaints, he cannot be said to have been discouraged by some culture contrary to such complaints. The Applicant's complaint that reports had been created because he had made complaints was correctly rejected by the Tribunal for there was a proper reason for their creation. The Tribunal correctly accepted the Respondent's submissions as to the keeping of records, albeit "secret". The Applicant had adduced no evidence that he was affected to his detriment by such records. Mr Bourne invited the EAT to look at each of the secret reports and appraisals and draw its own conclusions. We have.[79]As to bringing the claim in time, since the Applicant had not proved a complaint occurring within three months prior to the Originating Application, his claim must fail in its entirety. The legal principles[80]We consider the legal principles are derived from the following authorities. The latest and in our judgment the most comprehensive is The Law Society & Others v Bahl [2003] IRLR 640 EAT. The principles there enunciated and in the following authorities appear to be common ground. We will deal with the principles applicable to victimisation in more detail under paragraph 100 ff below, since there is less common ground on this issue. 1 The test for direct discrimination[81]In Bahl Mr Justice Elias and Members set out the undisputed principles for race discrimination as follow: "Direct discrimination: undisputed principles. 80 There are certain well established principles of this law which, whilst not controversial or in dispute in this case, have been relied upon and need to be summarised. 81 First, the onus lies on the claimant to establish discrimination in accordance with the normal standard of proof. 82 Second, the discrimination need not be conscious; sometimes a person may discriminate on these grounds as a result of inbuilt and unrecognised prejudice of which he or she is unaware. 83 Third, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a 'significant influence': see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 576. 84 Fourth, in determining whether there has been direct discrimination, it is necessary in all save the most obvious cases for the tribunal to discover what was in the mind of the alleged discriminator. Since there will generally be no direct evidence on this point, the tribunal will have to make appropriate inferences from the primary facts which it finds. These points are succinctly made in the following passage of the judgment of Lord Nicholls in Nagarajan (p. 575): 'Section 2 should be read in the context of s.1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within s.1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.' Similar observations were made by Lord Browne-Wilkinson (p.574). The observations of Lord Nicholls were adopted and followed by Lord Rodger in Shamoon v Chief Constable of the RUC [2003] IRLR 285 at paragraph 134. 85 Fifth, in deciding whether there is discrimination, the tribunal must consider the totality of the facts; see the observations of Mummery J giving the judgment of the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863 , which were followed by the Court of Appeal in Anya v University of Oxford [2001] EWCA Civ 405 ; [2001] IRLR 377 . Where there is a finding of less favourable treatment, a tribunal may infer that discrimination was on the proscribed grounds if there is no explanation for the treatment or if the explanation proffered is rejected: see the comments of Neill LJ in King v Great Britain-China Centre [1991] IRLR 513 , approved by the House of Lords in Glasgow City Council v Zafar [1998] IRLR 36 (Neill LJ in fact said that the inference may be made where the explanation was inadequate or unsatisfactory, but it is in our view clear, and in accordance with the principle in Zafar , which we consider below, that he was envisaging an explanation which was inadequate or unsatisfactory in the sense that the tribunal did not accept it as genuine, not in the sense that it was a genuine, non-racial explanation, albeit that it was unreasonable because it resulted in unreasonable treatment). 86 Sixth, it is clear from the structure of the statutory provisions that the need to identify a detriment is in addition to finding less favourable treatment on the prohibited ground. In many cases the detriment will be obvious, such as where someone alleges that he or she has been refused a job or promotion for unlawfully discriminatory reasons. Indeed, in most cases the fact that there is less favourable treatment will strongly suggest that there is a detriment. However, this does not necessarily follow, and indeed the more a course of conduct is broken down into a series of discrete elements (as in this case), each of which is alleged to be discriminatory, the more likely it is that a tribunal will properly be able to conclude that certain elements of the overall conduct, even if discriminatory, are so minor or insignificant as not to give rise to any detriment. 87 The test for establishing detriment is in general easily met. It was defined by Lord Hope in the Shamoon case as follows (paragraph 35): 'As [Lord Brightman] put it in Ministry of Defence v Jeremiah [1979] IRLR 436, 440, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence.' 88 Lord Scott in the same case emphasised that the question whether or not a detriment exists must be looked at from the victim's point of view. He added that 'while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance about the decision may well do so.' (paragraph 105). 89 It is, however, important to appreciate that, whilst less favourable treatment will usually, albeit not inevitably, constitute a detriment, the converse is far from true. There will be many acts which an employer or his servant or agent may take towards someone which will be a detriment even although it is not discriminatory in any way. Indeed, it is plain that a detriment in the sense of adverse treatment can result even from wholly reasonable and appropriate conduct of the employer. It follows that merely to identify detrimental conduct tells us nothing at all about whether it has resulted from discriminatory conduct. 90 Finally, a tribunal should not make findings of unlawful discrimination in respect of any matter which was not in the originating application or the subject of subsequent amendment. ... ." 2 Applying the test[82]The four-stage test (approved in Anya (above)) was set out by Mummery P and Members in Qureshi as follows: "(2) The issues As the industrial tribunal has 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, for example:(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, relative circumstances?(d) If there was a 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 those questions the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence." 3 Failure to investigate[83]In Coyne v Home Office [2000] IRLR 838, the Court of Appeal decided that a failure to investigate a complaint of discrimination can constitute an act of discrimination, provided that the failure is on racial grounds: see paragraph 11, Sedley LJ; paragraph 28, Sir Christopher Slade; and paragraph 39, Morritt LJ. 4 A continuing act[84]The interpretation of "any act extending over a period" in Section 68(7) of the Race Relations Act as a "continuing act" derives from the speech of Lord Griffiths in Barclays Bank Plc v Kapur [1991] ICR 208 , at 214-215. The other four Law Lords agreed with his approach. This was to recognise the distinction between an act which has continuing consequences eg. the failure to appoint to a specific job, and an act which itself continues. If the failure to appoint was pursuant to a "rule" operated by an employer "there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time the rule was abrogated within which to bring the complaint" citing from Bristow J in Amies v Inner London Education Authority [1977] ICR 308 EAT. Approval was also given to the judgment of Browne-Wilkinson P in Calder v James Finlay Corporation Ltd (Note) [1989] ICR 157 EAT, which upheld an employee's claim that she had been discriminated against by the failure of the employer to provide a mortgage subsidy. In that case (page 159 F to H):
"... so long as the applicant remained in the employment of these employers there was a continuing discrimination against her. Alternatively it could be said that so long as her employment continued, the employers were subjecting her to 'any other detriment' within section 6(2)(b) [of the Sex Discrimination Act 1975]. Once this conclusion is reached, in our judgment it follows that the case does not fall within Section 76(6)(b) [ibid]. The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having been done at the end of her employment."
[85]Similarly, in Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 EAT, Mummery P held that a failure over a number of years to re-grade an applicant and to give him an opportunity to act-up when such opportunities arose was properly to be regarded as a continuing act. It was "in the form of maintaining a practice which, when followed or applied, excluded [the Applicant] from regrading or opportunities to act-up" (see paragraph 20). Mr

Justice Mummery, sending the case for hearing, went on to say:

"21 ... an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of [the Applicant]. 22 ... It may be that, when explanations are given ... it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice."
[86]Lord Justice Mummery subsequently in the Court of Appeal made similar findings in Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 , when the Court allowed a full hearing by the Employment Tribunal of the Applicant's case that:
"48 ... the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', a 'generalised policy of discrimination', or 'climate' or 'culture' of unlawful discrimination."
[87]In that case the Court of Appeal held that the Employment Tribunal and the EAT had taken too literal an approach to the language of the authorities on "continuing act". The error was because they "concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of the case". Instead, a broader approach such as that found in Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 , 841 EAT was approved, where it was found that:
"51 ... there was an 'accumulation of events over a period of time' and a finding of 'a climate of racial abuse' of which the employers were aware, but had done nothing. That was treated as 'continuing conduct' and a 'continuing failure' on the part of the employers to prevent racial abuse and discrimination, and as amounting to 'other detriment'... ."
[88]Thus in Hendricks the focus of attention would at the hearing be on the substance of the complaints that "the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which" relevant minority officers were treated less favourably. The same could apply where the treatment is of a specific officer of a racial minority. In all cases:
"The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."
[89]Although not cited to us, Choudhary v Royal College of Surgeons [2003] ICR 1510 CA, decided on 15 May 2003 affirms the same approach (for indirect discrimination and, we would say, with more force for direct discrimination) to "cases in which an employer continuously applies a requirement or condition, in the form or a policy, rule, scheme or practice operated by him in respect of his employees throughout their employment .." (at paragraph 67). 5 The relationship between evidentiary or background facts and specific complaints[90]When looking at a number of complaints, the Tribunal must separate what Mummery P described in Qureshi (above) as "the evidentiary facts from the specific complaints".[91]A broad approach must be adopted. The Employment Tribunal there erred as it had adopted:
"a piecemeal, fragmented and compartmentalised, narrow approach, [and] had effectively made it impossible for itself to draw any inference from the totality of the primary facts found ... in the determination of the question whether Dr Qureshi had established the grounds of race or victimisation where an effective or operative cause of the actions complained of in his originating applications" [see page 870]. For, as Holland J observed in Driskel v Peninsula Business Services Ltd [2000] IRLR 151 at paragraph 12: "(a) The tribunal hears the evidence and finds the facts. As has already been pointed out, it is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents - judgment thus far should be limited to the finding of all facts that are prima facie relevant. If ad hoc assessments 'discrimination or no' are made the result is a fragmented and discursive judgment; more importantly, there is the potential noted in Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299 [Morison P] for ignoring the impact of totality of successive incidents, individually trivial."
Conclusions 1 A continuing act of discrimination[92]In our judgment the Tribunal failed to recognise the essential characteristics of the claim before it which were that, throughout the whole of the Applicant's career, he had been held back on the ground of race, and of making his concerns about his treatment known; and that this regime was revealed in secret reports and individual incidents. There is no necessity therefore for each or any of the individual 47 complaints to be constituted as an act of unlawful discrimination. The best they can do is to illustrate at any given time the continued existence of such a regime. The existence of a regime not to advance the Applicant's career is capable of being less favourable treatment. If it is based on race it is unlawful provided the Applicant suffers detriment. He would in the most obvious case suffer detriment on each occasion when he applied for promotion and by reason of the application of the regime he failed. But he could still suffer detriment from the mere existence of the regime until such time as it was abrogated. He may feel discouraged about applying for positions because he always fails. He may feel or actually be discouraged from making complaints about his treatment. In our case, following the concession at the previous EAT hearing, the focus changes from examination of each individual act to a consideration of the whole period of employment and whether it demonstrates the existence of an unlawful regime.[93]The Tribunal's failure to consider this matter by drawing back, as enjoined by Qureshi and Anya, from the individuated complaints is an error. It does not follow logically that the dismissal of each of the 47 complaints means that there was no regime in place. In any event, as we indicate below, the Tribunal made a number of errors of law in its approach to certain individual complaints. We have identified the earliest as being the allocation to Full Street Station in Derby City Centre in 1985 and the failure in 2000 to act upon what is plainly a complaint of race discrimination. There was a number in between. Correctly directing itself, the Tribunal should therefore have considered whether there was in the light of that material a regime in place. It did not do so.[94]The Tribunal lost sight of the single overarching complaint, which it cited from the Applicant's Originating Application, and can be summarised as being, like Hamlet, that he "lacked advancement". The original 47 acts complained of were treated to specific analysis pursuant to the statute, through one or all of the four stages as enjoined by Qureshi at 873G-874A. Some failed because there was no apt comparator, others because there was no less favourable treatment, and others because the less favourable treatment was not unlawful discrimination. But these, at least following the concession at the EAT that this case is about a single complaint, are simply illustrations of the way in which the primary contention of the Applicant is made good. They are in this context evidentiary facts.[95]The effect of the distinction in Qureshi between specific and evidentiary facts is this. In respect of the evidentiary facts, the Tribunal must not make a decision on the elements of the statute, asking "discrimination or no?" ( Driskel v Peninsula above). It follows that matters which have not been the subject of a positive adjudication in the Applicant's favour under the statute can yet form the basis of a conclusion in his favour on one of the specific acts. The whole point of taking a step back, having made findings of preliminary facts, is to see whether a picture emerges different from the pixels which are said to make it up. An evidentiary matter which has not been found to be discriminatory (because that procedure is not apt for evidentiary facts) can nevertheless inform a judgment on a specific act. When, as here, the allegation is of a policy or a practice which endures throughout the life of the employment relationship up to the time of the Originating Application, that policy is the specific act referred to by Mummery P, and not, at least on the concession in this case, each of the 47 acts complained of.[96]It must be said that there will usually be a distinction between acts which are capable of a firm finding as to whether they occurred or not – the first four stages of the Qureshi test. So, as in our case, where the Tribunal finds against the Applicant that racial abuse was uttered to him on a specific occasion, that cannot be taken any further. But where, to take an example not in this case, an obviously qualified candidate continues to make the short-list for promotion but comes second on each occasion, a finding of a practice of discrimination may be made, notwithstanding that an explanation for his failure on each of the interview boards has been accepted to the satisfaction of the Tribunal. Three or four such refusals may lead to the justifiable conclusion that he failed not out of bad luck or lack of qualifications but because of his race.[97]It also seems to follow from this approach that where specific acts are complained of in the Originating Application and are within time, and lead to a conclusion that there has been no discrimination contrary to the statute, they too may form part of the background to be surveyed when the Tribunal steps back to look at the totality of the circumstances. If this is correct, it is very easy to say that there is no imperative to find in respect of a claim of a continuing act that any given example of the policy complained of being operated was itself discriminatory contrary to the statute. Just as in the case of a constructive dismissal, a series of acts, none of which is a fundamental breach of contract or even a breach of contract in itself, can go into the equation when deciding whether the last straw has been added to the camel's back so as to amount to a fundamental breach of contract. In Lewis v Motorworld Garages Ltd [1986] ICR 157 CA at 169, Glidewell LJ said this:
"... the breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which accumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract: the question is, does the cumulative series of acts taken together amount to a breach of the implied term.? ... . This is the 'last straw' situation."
[98]In our case, the simple finding by the Tribunal that, since none of the allegations of the 47 matters was well founded "therefore ... there was no need to determine whether there was a course of conduct ... " (paragraph 84) is not, in the light of the correct approach enunciated in Qureshi , a satisfactory answer to the Applicant's principal complaint. The Tribunal should have asked itself the following: now that we have rejected all of the Applicant's individual claims, is there yet some evidence of discrimination in the form of a practice or policy precluding his advancement? 2 The secret reports[99]The Applicant's case was that reports were kept on him which were not on his file. They included reports relating to monitoring. Monitoring of his case was conducted following the Gee-Pemberton report which was race specific. All officers considering the Applicant's career had access to the monitoring reports and other documents. Twenty-eight "secret reports" were identified. They contained the original view of any given officer and are compounded as the report moves higher up the chain of command. These reports undoubtedly informed decisions on the Applicant's career including deployment, promotion, acting-up and on becoming tutor constable. The holding of reports which are not visible to the Applicant is, the Tribunal was told, not in accordance with Police Regulations. Since half of the reports contain race specific material about the Applicant, and since resort was had to this material when the Respondent was considering at various stages during the Applicant's career his advancement or not, and since the Applicant was not able to view this material and make comments on it, it is capable of being less favourable treatment of him on the ground of race which is to his detriment. 3 Victimisation and "formal complaints ".[100]Ms Brown is correct when she contends that the Tribunal erred when it did not set out its reasoning as to what constituted a formal or specific complaint, since that was the basis upon which it rejected a number of the matters which were described as "complaints" for the purposes of the proceedings. The Applicant contended that the nub of his complaint was not that he was making formal complaints but that such complaints were discouraged and informal complaints were ignored. The Tribunal did not define what it considered to be requisite for a complaint to be made. It simply recorded that it had had cases cited to it. Without a clear view of how it perceived the applicable law on victimisation, it was in danger of making the errors which Ms Brown identifies.[101]A "complaint" is certainly not in the language of Section 2(1) of the 1976 Act, although it is used in passing by Waite LJ in Waters v Commissioners of Police of the Metropolis [1997] IRLR 589 CA, paragraph 86 ("a particular complaint"). The correct approach is, as he said:
"It is better, and safer, to give the words of the subsection their clear and literal meaning. The allegation relied on need not state explicitly that an act of discrimination has occurred – that is clear from the words in bracket in s. 4(1)(d). All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer within the terms of [the Act]."
[102]The four strands of section 2(1) are generally described as "protected acts". In this case. particularly relevant are (c) and (d). The Applicant was contending that he had done something by reference to the Act in relation to some person. That does not require an actual allegation to have been made. Further, such allegation as is required by (d) need not be in a specific form. Although both of these subsections have to be treated literally, the rider which follows is in language which is particularly wide. This switches attention from what the victim is doing or saying to what the discriminator knows or suspects. In other words, (a) to (d) are all qualified by the opening phrase "by reason that the person victimised has ... ". In a separate category are the matters contained in the rider which affects matters done "by reason that the discriminator knows ... ". In this second category, a much broader approach is permitted, since it does not require the victim to have done or even alleged anything. It requires a state of mind in the discriminator relating to what the victim has done or intends to do. Thus, for a protected act to fall within this second category, it is not necessary that it take the form of an allegation, or the doing of anything by reference to the Act. So when, for example, Chief Inspector Bown or, separately, Superintendent Gee-Pemberton, formed the view that the Applicant was or might be aggrieved by his treatment on account of his race or of making complaints, that opinion fell within the second category of Section 2(1).[103]It also follows that a failure to investigate what is perceived by senior officers as a potential complaint on the ground of race, constitutes discrimination if the failure to investigate it is on the grounds of race. A culture of discouragement of claims is also capable of constituting less favourable treatment if that is based on racial grounds.[104]In a case where there was no contractual procedure, the EAT has held that a reasonable opportunity to air grievances should be implied for in W A Goold (Pearmark) Ltd v McConnell [1995] IRLR 516 EAT, Morison P said this, at paragraph 11:
"... The industrial tribunal was entitled ... to conclude there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievances they may have."
The EAT noted that in the absence of any grievance procedure, and we would add in the absence of the proper operation of a procedure, "the employees' grievances, instead of being considered and dealt with promptly, [could be] allowed to fester ... " [ibid paragraph 7]. Similarly in Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299 EAT, Morison P held that when an employee complained to other employees of sexual harassment, it was incumbent upon her employer to investigate the matter and failure to do so would be a breach of contract. Such an approach is relevant to claims of direct discrimination and of victimisation, in our view. 4 Examples of misdirection in the treatment of complaints[105]In our judgment the submissions made by Ms Brown orally and in her schedule have made good the criticisms which she made in her Notice of Appeal. For the same reason as appealed to the EAT in Qureshi [2002] ICR 863 at 870D, it is necessary for us to take only a few (11 in fact) of the 33 complaints still live on appeal in order to exemplify the restrictive approach taken by the Employment Tribunal in the determination of the Applicant's case and which are themselves misdirections in law. 1. Immediately following his probation period in 1985 the Applicant was transferred to Full Street Police Station. The decision to deploy him was in part based on his race and was thus capable of being an act of race discrimination, particularly since the Tribunal found that he had objected. The deployment was to his detriment because, as predicted, he suffered threats of violence. True, others did; but the Tribunal's conclusion that the threats he suffered were no different from those of other officers misses the point. He was deployed there, in part, because of his race, the Respondent having what we hold to be the benign intention of demonstrating in public the Respondent's policy on recruitment of ethnic minority police officers. The Tribunal found that the Applicant complained. His complaint was not acknowledged. At the very least therefore this constitutes an act capable of being the completed tort of discrimination; and it demonstrates a "protected act" for the purposes of victimisation. 2. Similarly, the Applicant complained about Sergeant Smith's appraisal to Inspector MacDonald but there was no acknowledgment. For in a report submitted together with Inspector MacDonald's report, marked "staff in confidence" dated 3 December 1986, it was acknowledged that " he is not at all happy about what Sergeant Smith has said". There is specific reference to the Applicant's race because he had "become well known amongst the black youths in the City", and "his own ethnic background can be a mixed blessing". In the light of this there was a duty on the Respondent to at least investigate his objection. 3. In respect of the Applicant's contention that he had been denied opportunities for development and acting-up and access to Tutor Constable training courses, the Tribunal decided that the Applicant's comparators, Malcom Kean and Ian Penman were not appropriate. Yet both these had the same length of service and were qualified by examination at the same time. Each had been given opportunities to act-up. The comment by Inspector Cantrell on 2 March 1987 that the Applicant had "not yet integrated with his colleagues" ought to have led to a self-direction that this was capable of being conscious or unconscious racial discrimination in the context of a direct comparison with peers whose circumstances were relevantly similar. 4. As for Chief Inspector Bown's report on 2 June 1988, the Tribunal failed to recognise that a concern about lack of opportunities for acting-up and going on a Tutor Constable course, which was recognised by Chief Inspector Bown as race-based, constituted a claim of race discrimination. After all, Chief Inspector Bown said this:
"Although he did not mention race it is clear that the officer feels he is being discriminated against." 5. Again, the Employment Tribunal failed to recognise as less favourable treatment the reaction given by officers to the Applicant's transfer in May 1990 to St Mary's Gate Police Station. This was race specific and officers were warned that they should be careful not to upset the new black officer. No such warning would be given to officers about the impending arrival of a white officer. 6. By the time of the Weselby report on 23 April 1991 the Respondent was in possession of the Gee-Pemberton report which was race specific. The Applicant had been singled out as an officer most likely to make a complaint. Those interviewed by Superintendent Gee-Pemberton were not aware that individual reports would be submitted on their responses. The Gee-Pemberton report arose specifically out of concerns in the Derbyshire Constabulary about a race discrimination claim against Nottinghamshire Constabulary, Singh v Chief Constable and Nottinghamshire Constabulary .. Superintendent Gee-Pemberton wanted to speak to black officers about their own experiences and whether positive action might be taken. In his supplementary report on 21 February 1999, Superintendent Gee-Pemberton recorded the note of his interview with the Applicant and noted that "many of the questions raised issues which he considered to indicate racial discrimination and racism"
. This undisclosed report contained the judgment as follows:
"I imagine he is quite abrasive, does not try particularly hard to fit in with the team and is excluded from things because of his attitude. He is in my view racist himself and needs to consider his own attitude carefully."
The Tribunal erred in failing to recognise that that could be less favourable treatment of a black officer who was raising complaints of race discrimination. Superintendent Gee-Pemberton's assessment of him was that he was not the victim but the perpetrator of racism. It follows that Deputy Chief Constable Weselby, in accepting that assessment, compounded the complaint. 7. Similarly, the Keen report dated 11 May 1992, discrediting the Applicant's performance in 1991 and 1992, drew from the Gee-Pemberton report, was similarly prejudicial, related as it was to the Applicant and one other officer, PC Patrice, and the same criticism applies. It was, as the Tribunal found, part of the monitoring process instigated by the Gee-Pemberton report. 8. By the time of his meeting on 3 June 1992 with Chief Inspector Chalkley, the Applicant had been singled out as "a marked man" in his own account. In our judgment, the Tribunal erred in law when it failed to recognise that the Applicant was there making a complaint that he had complained of race discrimination and been treated less favourably as a result. The Tribunal after all found Chief Inspector Chalkley not to be wholly satisfactory as a witness. The Tribunal found that no enquiries were made following Chief Inspector Chalkley's report Yet the Tribunal's finding that there was no less favourable treatment, nor evidence of a protected act, was based primarily upon the finding that the Applicant made no specific complaint of race discrimination. . 9. Again, in January 1992, the Szabo report criticised the Applicant's attitude which had "been previously identified and addressed". We make the same comment as above. The Szabo report was in relation to the Applicant's application for promotion which failed. 10. Similarly in respect of the Applicant's application to go on a Tutor Constable course, the Loades report again refers to the Applicant's attitude and the Applicant continued to be monitored pursuant to the Gee-Pemberton report. Since Chief Inspector Chalkley still considered that it would be unfair for other officers if the Applicant were singled out "for obvious reasons" that too is capable of being less favourable treatment and evidence of a protected act. 11. The Tribunal found that on 11 November 1999, at a meeting with Inspector Gibson, the Applicant had said that his failure to be promoted, and the failure of the Force to do anything about his development, were based on racial grounds. The Tribunal found that no formal complaint was made and thus came to the conclusion that there was no evidence of a protected act on that occasion. Again we regard this as a misdirection. This was an allegation of less favourable treatment on the ground of race which should have been followed up. This was pre-eminently the case since Divisional Commander Hurrell had said that he accepted that both the Applicant and PC Sangha may have been the victims the discrimination on 30 March 2000.[106]Ms Brown is also right when she draws attention to policy documents. Although the Home Office guidance discouraging the deployment of officers from ethnic minorities into ethnic minority areas post-dated the Applicant's deployment to Full Street in 1985 (misdirection 1 above), it was not contended that the essence of that policy did not apply at that time. The Applicant should not have been allocated to that duty when in effect the only factor relevant to his choice was his race. Since he suffered threats which were predictable he suffered detriment. In any event the policy was active when in 1990 he was transferred to St Mary's Gate (misdirection 5 above). The complaint of inadequate findings[107]Generally speaking we reject the contention by Ms Brown that the Tribunal made inadequate findings or, apart from the above, failed to deal with submissions of the Applicant. Since this case has moved on pursuant to her concession, it becomes clear that the Tribunal was not obliged to make findings on every individual act, although it did seek to do so. Looking at its treatment of these 47 issues in the round, we consider the Tribunal has made a careful analysis of the issues then before it, and made findings on the basis of the issues. A Tribunal is not required to make a decision on every single submission but only those which relate to issues which are critical or vital: English v Emery Reimbold & Strick Ltd [2003] IRLR 710 CA. In certain cases Ms Brown is correct that a finding has not been made but we consider in the context, and particularly in the light of the concession, such defects as she identified are not critical, and we dismiss this ground. She does not contend the decision was perverse but, as we have held, the decision contains other errors of law. Disposal[108]It is with great sadness that, given the errors of law which we have identified, we have no alternative but to set aside the decision of this extremely conscientious Tribunal which sat for 55 days, and produced clear findings in systematic Reasons. Having received submissions from the parties, we have decided it will be remitted to a differently constituted Tribunal where the issues will be closely defined and attention can be given to what we have suggested is the correct legal question. It is thus not necessary for us to deal with the submissions of both parties relating to the possibility of remission for further reasons since we have not found there to be an error by reason of want of reasoning. Costs[109]An application was made on behalf of the Respondent for costs on two grounds, and by the Applicant on one. The costs relate to unreasonable conduct under Rule 34 of the EAT Rules. First, it is contended that the Notice of Appeal contained an assertion that evidence had been given by Mr Bartram ("the evidence point"). Chairman's Notes were sought. It turned out that whatever reference was being made it was not to Mr Bartram but to Mr Moore. Secondly, Judge Serota's EAT left open the question of costs of the aborted hearing. The Applicant submitted that a Skeleton Argument had been produced but if a criticism were to be made it was not of her case but a joint criticism on the failure of the parties to organise the case so that it could be heard timeously. Ms Brown resisted the costs application and made her own.[110]The award of costs in the EAT is unusual. We hold that no costs should be awarded to either party in respect of the aborted hearing before Judge Serota's EAT because both were at fault. In respect of the evidence point, failure to identify correctly the witness (Mr Moore, not Mr Bartram) was an error but could not in itself be classed as unreasonable conduct. It certainly put the Respondent to some expense but there is a difference between an innocent error and unreasonable conduct.[111]However, Judge Serota's Order, in accordance with the Practice Direction 2002, required attempts to be made to agree the relevant evidence. We accept the criticism made on behalf of the Respondent that the Applicant failed to take steps to collaborate in this duty. That was a simple requirement placed upon the parties, by this Order, and also by the Practice Direction. We consider it was unreasonable for the Applicant not to so collaborate. Having considered the schedule of costs sought on behalf of the Respondent justice would be done by the award of £500.[112]We would wish to thank Ms Brown and Mr Bourne for the very careful attention they have given in the preparation and administration of this case, and for their additional submissions after the oral hearing.