UKEAT/0484/04/RN GMB UNION v MR M FENTON [2004] UKEAT 0484

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0484_04_1210

Case No Appeal No. UKEAT/0484/04/RN & UKEAT/0798/02/RN & UKEAT/0046/03/RN

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

UKEAT/0484/04/RN GMB UNIONAPPELLANT

MR M FENTONRESPONDENT

UKEAT/0798/02/RN MR M FENTON RESPONDENTAPPELLANT

GMB UNIONRESPONDENT

UKEAT/0046/03/RN GMB UNIONAPPELLANT

MR M FENTON RESPONDENTRESPONDENT

Before

Mr Justice Burton

Date 12 October 2004

[144]A few minutes later he completed his evidence and after discussion between the representatives and the Tribunal. The applicant withdrew his application and it was dismissed on withdrawal." The Tribunal concluded in paragraph 146 that:

"We believe that the applicant has conducted these proceedings in a misconceived way and therefore we "shall" consider making an order" and then such award was made. In the light of the EPA Decision, the Union sought and obtained, from Cox J, permission to amend the Union's pending appeal against the Victimization Decision, and such appeal, so amended, came before this Appeal Tribunal, differently constituted but presided over by me, on 7 October 2003. By virtue of the course the case had taken, we dealt first with the amendment to the Notice of Appeal. Although Miss Machin, who appeared for GMB on that and indeed on other occasions, raised certain other arguments, the main issue that was before us on that occasion was by reference to Section 4 (2) of the 1975 Act , which reads as follows: "

Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith." We concluded, having heard Miss Machin and Mr Fenton, that the matter should be sent back to the Employment Tribunal for consideration of Section 4 (2), in the light of what we heard. We set out the background to the case in that Judgment, which included additional matters upon Miss Machin was relying to form part of her case that there was bad faith by Mr Fenton. At paragraphs 37 and 38 of the Judgment we referred to matters which supported, as Miss Machin submitted, her case that at all times Mr Fenton had had a collateral motive in bringing the EPA claim, and that he had not acted in good faith. We also referred to the interlocutory application before Mr Doyle in August 2001, and to the evidence given by Mr Fenton at the Equal Pay Act hearing, which we have recited from paragraph 143 of the EPA Decision. We also referred to a document that was put before us from the solicitors who had been acting for Mr Fenton, and which referred to the circumstances of the withdrawal of the EPA claim at the Equal Pay Act hearing in giving its report to the Union of what occurred. The passage from that letter, dated 26 March 2004, read as follows:

"In order to succeed under the Sex Discrimination Act Mr Fenton needed to show that the disparity in treatment was based on sex. His instructions to me throughout the course of these proceedings were exactly that, i.e. that the disparity in treatment was as a result of sex, in that he as a male was denied access to the Pension Scheme, whereas Sheila Bridge as a female employed on like work was allowed access to the Pension Scheme. Under cross-examination Mr Fenton was asked whether he believed the difference in treatment was based on sex. He indicated that he believed it was not. This single answer was fatal to the Sex Discrimination Act claim. It would therefore have not been necessary for the Tribunal to consider whether or not there was a [comparator] because Mr Fenton failed on the first hurdle in establishing that the treatment was based on gender. It is fair to say that Mr Fenton had a strong case on the [comparator] issue."

That was signed by Mr Cook on behalf of those solicitors. We also referred to the fact that the Costs Order had been made in favour of the Union against Mr Fenton at the end of the Equal Pay Act hearing, as we have described; but we accepted Mr Fenton's submission, contrary to what Miss Machin was submitting to us, that a finding that the proceedings were misconceived did not necessarily lead to a finding that there had been bad faith in the bringing of the proceedings. We concluded in paragraph 68 of out Judgment as follows:

"68 The case against him is extremely strong. Nevertheless, we conclude that it would not be right for an appellate tribunal to speculate as to what an Employment Tribunal would do – albeit that the speculation in this case is based on very strong evidence, as we have indicated – where the finding is or would be one of bad faith. 69 We conclude that it would be right here for Mr Fenton to have the opportunity of persuading a Tribunal (we put it that way, although we know of course that the onus of proof will be on the Union, by reference to the evidential burden which he will have, given the strength of the case against him) that when formulating the equal pay claim, and pursuing it, and using it to surmount the hurdle of the strike-out application, and then, as Miss Machin has put it, "piggy-backing a victimisation claim on it", he was not acting in bad faith, that is, using the proceedings for the purpose of bringing pressure to bear on his employers, his Union, to settle his straightforward claim, right or wrong, for equal access to the Pension Fund prior to 1994."

Given the amount of time that the argument on the amended ground had taken before us, we did not deal with the remaining grounds in the Notice of Appeal and the cross-appeal, which were adjourned generally, to be restored if and when the matter came back after a further hearing before the Tribunal. One matter that should be added to this summary is that, with regard to the EPA claim, notwithstanding that the direction by Mr Doyle that it was only to go forward after August 2001, when Mr Bradford's case was struck out, on the limited basis of comparison with the position of Ms Bridge, when the EPA claim came on for hearing there was no mention whatever of Ms Bridge, or any case of comparison with her, in any Witness Statement put in on Mr Fenton's behalf at that hearing. This was a matter which was not entirely clear at the time when we heard the matter in October 2003 at the Employment Appeal Tribunal, but it subsequently became confirmed by the time the matter came on for the s 4 (2) hearing, as it did, before Mr Robinson as Chairman, with Mrs Clarke and Mr Field (that is, not the lay members with whom Mr Robinson had sat when the Equal Pay Act hearing took place and the decision was made as to costs, but those with whom he had sat in relation to the Victimization hearing). The Decision at the s 4 (2) hearing, as we have called it, which was handed down on 19 May 2004, resulted from a one day hearing on 1 April 2004, when evidence was heard not only from Mr Fenton, but also from Mr Cook. We have not seen any notes of evidence, but it appears that Mr Cook gave evidence to say effectively that he had been totally incompetent. In paragraph 52 of the Section 4 (2) Decision he is recorded as apparently saying, when he came to give evidence to the Tribunal, "I hold my hands up", the Tribunal went on:

"52. …In other words, Mr Cook was suggesting to the Tribunal, and we believed him, that it was very much his fault that Mr Fenton's statement did not deal adequately with the question of Sheila Bridge as a comparator (indeed, she was not mentioned)."

[53]Mr Cook went on to tell us that this was his first equal pay claim.

[54]He went on to say that Mr Fenton had encyclopaedic knowledge of the case and therefore he, Mr Cook, relied very much on what Mr Fenton said to him but we got the impression from hearing both Mr Fenton and Mr Cook that their continuation of the Equal Pay claim was not done vexatiously, vitriolically, angrily, falsely or indeed in bad faith.

[55]The impression we all came away with was that both Mr Fenton and Mr Cook misunderstood what needed to be done and the steps they had to make were lost in the general melee of the proceedings.

[56]It must also be remembered that the proceedings under the Equal Pay Act were run together with Mr Fenton's application that he had been constructively, unfairly dismissed. The impression we formed from the evidence was that there was no focus to the preparation of his claim. No doubt he and his solicitors must be criticised for that but their actions did not overstep the mark to falsehood and bad faith." It was quite apparent from the Witness Statement that was put before that Tribunal by Mr Fenton that he accepted that he was bringing the EPA claim for what can certainly be called a collateral purpose, that is, for the purpose of achieving his real end of securing his inclusion in the pension scheme. His peroration at the end of his Witness Statement in paragraph 70 reads as follows:

"This claim was brought because I had no alternative, given the failure by the GMB union to help me negotiate a settlement with GMB as my employer. It was brought because I felt it a matter of utmost principle that, as a trade unionist working for a Trade Union, I could not do my job properly by going into class informing GMB stewards and Officers as to the details of GMB policy and how to negotiate settlements on matters of equal access to such schemes and on issues of discrimination when I was being denied access to the GMB scheme by trade union managers acting like the worst of employers which our stewards had to contend with back in their own workplaces. The fact is that this claim was made in the utmost of good faith on my part in seeking to uphold the principles of trade unionism by attempting to ensure, through internal means, that the GMB abided by its own policies in the only place where it could do so entirely – with its own employees in its own workplace."

It is apparent, in fact, that this plan that Mr Fenton had was incapable of achievement for one very good reason, which it took Miss Jane McNeill QC, belatedly instructed on behalf of the GMB, to appreciate, namely that, whereas for the purpose of entry to the pension scheme Mr Fenton and Mr Bradford would have needed to have established that they were employees, for the purpose of success in a the EPA claim, the only thing that Mr Fenton would need to establish would be that he was a worker within the definition of the Equal Pay Act . It appears that Miss McNeill QC, on behalf of the Union, conceded, for the purposes of the Equal Pay Act hearing, that Mr Fenton was a worker. The proceedings, therefore, would only revolve around whether there was or was not discrimination on gender grounds, and it is in those circumstances, it appears, that Mr Fenton, faced by Miss McNeill with having to make his case one way or the other as to whether there was any discrimination, which was fundamental to the success of the EPA claim, conceded, in clear terms as recorded by Mr Robinson, and indeed as confirmed, in terms, by Mr Cook in the letter to which we have referred, that, as he put it, clearly there was no connection with gender. That policy, however, doomed, as it turns to have been, to failure, although not so appreciated until Miss McNeill QC came on the scene by anybody, including Mr Doyle at the interlocutory hearing, was plainly the subject matter of some sympathy by the Section 4 (2) Tribunal in its Decision. The Tribunal said as follows: "65. It was put to him in the lengthy cross-examination by Miss Machin that he made the application for victimisation in an attempt purely to bring the Union to its knees. His answer was immediate "that's a nonsense", he said.

[66]It was further put to him that he "set up" the protected act to put pressure again on the Union.

[67]Again, the answer came immediately from Mr Fenton "no – nonsense". He went on to say that it was access to the pension scheme that he wanted and he knew he had been excluded and he knew that he had a right to it. At that point he also went on to say, "I wanted a resolution internally". We believed him." In paragraph 75 of its Section 4 (2) Decision the Tribunal said as follows: "75. It is perhaps easy with hindsight to see where they went wrong and we are critical of the way in which both Mr Fenton and his legal advisers prepared his case. But on hearing Mr Cook and Mr Fenton give evidence it was clear to us that the applicant felt a strong feeling of injustice and we do not doubt his sincerity. What we do doubt is his ability to conduct the case when he was so frustrated and angry. Unfortunately his lawyers did not provide the objectivity and judgment needed in such cases.

[76]Mr Fenton's aim has been that he wanted to prove that he was an employee and over the many years during which the problems between him and the GMB have been festering, he has been frustrated in that aim. …" We have now been in a position to assimilate the position , with the benefit of the Section 4 (2) hearing, and the evidence clearly given by Mr Fenton and Mr Cook at that hearing. It appears clear to us that the existence of such a collateral motive, of itself, would not be sufficient or at any rate might well not be sufficient. If, in fact, a claimant has a belief that he has a good claim, but perhaps one that is not terribly likely to succeed, and he brings that claim with some collateral purpose, it appears to us that that does not necessarily make the bringing of that claim in bad faith. The issue is not the purpose, but the belief in the claim. What Miss Machin put firmly before the Section 4 (2) Tribunal, in the conclusion of her Skeleton Argument, which we have seen because it is expressly referred to and incorporated in the Section 4 (2) Decision by the Tribunal, was this:

"It is submitted that the applications made to this tribunal were false and made in bad faith because Mr Fenton knew that the actions of his former employer were not matters that could be justicable under the Sex Discrimination Act or the Equal Pay Act."

We conclude that that is indeed the force of the case against Mr Fenton under Section 4 (2) of the Act. That has two limbs to it. The first limb is the need for an alleged victimizer, who wants to take advantage of that section, to show that the allegation which was said to form the protected act was false, and the second limb is that it was not made in good faith. It is beyond doubt in this case that the allegation that was made was false, and thus that the limb was satisfied. The exclusion of Mr Fenton by the Union from the pension scheme was not by reference to gender, it was not on the basis of discrimination on grounds of sex. It is quite plain that, whether or not the decision of the Union was correct that Mr Fenton and other were not employees and thus did not qualify for the pension scheme, such a decision had nothing to do with sex or gender; and of course that is exactly what Mr Fenton himself said in his evidence to the Tribunal, as recorded by Mr Robinson at paragraph 143 of the EPA Decision, and as confirmed by Mr Cook in his contemporaneous letter. It appears that some kind of explanation may have been given by Mr Fenton at the s 4 (2) hearing before the Tribunal to try and alter or interpret the record as to what was said at the Tribunal, but we have no doubt at all that what he there said, as recorded in the EPA Decision, and in the letter of Mr Cook, was what he in fact said, and Mr Robinson who was presiding at both the EPA hearing and the s 4 (2) hearing did not in any way, as we read it, doubt his own record of what was said to him as being accurate. The issue therefore was whether, on the particular facts of this case, the Union can show that Mr Fenton knowingly made such false statement, that is, that Mr Fenton had no belief in the truth of the statement, when he made it, that the exclusion from the pension scheme was on grounds of gender or sex. The evidence which was before the Tribunal in this regard is that which we have set out already in this Judgment, and which we summarize: (1) He knew the law, he knew the position and he knew that Mr Bradford's case, on the basis of a general allegation of sex discrimination or breach of the Equal Pay Act , had been struck out as misconceived; and that the only way that he had been able to salvage his claim was by making an express cross-reference to Ms Bridge. (2) Notwithstanding that knowledge, and notwithstanding the direction of Mr Doyle that his case would only go forward on that limited basis, he made no reference whatever in Ms Bridge in his evidence or in his submissions before or to the Equal Pay Act hearing. (3) As is quite clear from the statement he made in cross-examination at the Equal Pay Act hearing, which, as we have indicated, we are entirely satisfied the Chairman, and Mr Fenton's own solicitor accurately recorded, he did not suggest that there was any basis for his gender claim. What argument could there be, in those circumstances, to set against the powerful case that out of his own mouth he accepted that there was no substance at all to his claim? In paragraph 6.5 of his response to the amended Notice of Appeal, Mr Fenton said as follows:

"The 'cause of action' the protected act, was the failure of GMB as employer to allow him equal access to the pension scheme. Mr Fenton alleged that, in the absence of any other plausible reason, the reason for his exclusion was due to gender."

In his Witness Statement for the Section 4 (2) hearing at paragraph 52 he said as follows:

"I believed that if I could defeat the material factor defence, then in the absence of any other explanation I could invite the Tribunal to infer that my exclusion from the pension scheme was based on gender and the equal pay claim would then succeed."

That does not feature in what we have called his peroration at the end of his Witness Statement, in which he justifies what he had done. The case basically is, as we understand it, "I made the allegation that the exclusion from the pension scheme was on grounds of gender, because I thought it might possibly be so, not because I had any knowledge to that effect, but because if the Union could not otherwise justify the exclusion, on some basis or other, then I could ask a Tribunal to draw an inference that it was due to a difference in gender." That is, of course, not a case which he made before Mr Doyle, nor a case that Mr Bradford, with the opportunity of advice from him, made before Mr Doyle in order to save his own claim from being struck out. It is not the basis on which alone his case was permitted to go forward by Mr Doyle. It is not a matter of which he uttered a word when he said what he did in the witness box, in the clearest possible terms, in answer to Miss McNeill QC, and it is not, it seems, a matter which he raised at all when, in accordance with the clear letter from Mr Cook, the decision was made by Mr Fenton, his counsel and his solicitor that the case should be withdrawn, leading to the Decision, in due course, for costs against him on the basis that the application had been misconceived. The Tribunal mentioned this assertion about inference in one place in the Decision as follows: "57. Mr Fenton also said that he had no idea why the GMB would not allow him to be categorised as an employee and "there must be some reason for that" and his gender may have been the reason.

[58]When Mr Fenton said that he seemed sincere." That is all that is said. There is not, in fact, a finding in that regard, other then the words "he seemed sincere", and of course there is no consideration as to whether that would have any substance in any event, given the fact that, in those days before the onus of proof shifted in certain circumstances to the Respondent, the onus of proving discrimination would have been upon Mr Fenton. But nevertheless there is a reference which shows that the statement he made in the passages we have quoted from his Respondent's answer and his Witness Statement was repeated in some form in the witness box. The Tribunal does not set it against the powerful matters to which we have referred above, in particular the Doyle Decision and the McNeill cross-examination. When it comes to its conclusion, the s 4 (2) hearing Tribunal sets it out very shortly indeed in paragraph 73 of its Decision. It has set out the legal framework immediately prior to that paragraph, as follows: "Legal Framework

[70]The legal framework is straightforward. We looked at the issue as to whether the allegations of victimisation were made falsely [that is not entirely an accurate recitation of Section 4 (2), in which it is not the adverb "falsely" which is used, but the adjective "false", by reference to the allegation] and not made in good faith contrary to s.4(2) of the SOA 1975.

[71]We accepted Miss Machin's view that there are two strands to the particular subsection and we considered what, in plain English, the words "misconceived" [that is a reference to their costs finding] , "false" and "in good faith" mean. It is the view of Miss Machin that once a Tribunal finds that Mr Fenton has acted in a misconceived way then, given the circumstances of this case, it must follow that he also acted falsely and not in good faith.

[72]We were all of the view that "misconceived" is a less critical use of language than "false" or "not in good faith". We understood "misconceived" to mean "to apprehend wrongly", "to misunderstand", "to interpret wrongly" and that "false" means "wrong, erroneous, incorrect" but can also mean "purposely untrue". The phrase "good faith" means "with sincerity" and consequently "bad faith" means "not with sincerity" or "treacherous"." We do not accept the interpretation of the words in Section 4 (2), there set out by the Tribunal. Miss Machin has told us that she did not use the word "treacherous", and she submits, and we agree with her, that to use the word "treacherous" certainly puts an unnecessarily emotive aspect to the language, but almost certainly puts the case too high. We understand that the Tribunal was there grappling with a submission that Miss Machin was making as to the alleged necessary consequence of its own findings that the proceedings were misconceived upon its finding that it was now being asked to make under Section 4 (2), and it was therefore necessary for Tribunal to grapple with that distinction. But the words of Section 4 (2) of the Act are not, in our Judgment, anything like as complicated as the Tribunal appear to have concluded them to be. As we have indicated earlier, the first question is whether the allegation was false, not "made falsely" – that would almost render nugatory the first limb and blend it into the second limb. The simple question is whether the allegation was false. It is wrong to suggest that "false" can mean "purposely untrue"; that again blends the words, presumably meant to be "purposefully untrue", from limb one into limb two. It is enough for the Tribunal to have correctly said that "false" means "wrong, erroneous or incorrect". We agree with that, and we have already indicated that it appears clear beyond doubt that the allegation that was made here, that the exclusion from the pension scheme was on grounds of gender, was false in the sense or "wrong, erroneous or incorrect". To suggest that the words "good faith" mean "with sincerity" such that consequently "bad faith" means "not with sincerity" or "treacherous" again, in our conclusion, is wrong. There may be circumstances, as we have indicated, in which "bad faith" may carry many other connotations, but, for the purposes of the narrow issue in this case – notwithstanding the additional allegation of collateral purpose, which Miss Machin had also run, and needed to be addressed by the Tribunal – was a simple one, namely whether the Tribunal was satisfied that Mr Fenton had made a false statement, knowing it to be false. It was plainly the latter question, the question of whether he had made a statement knowing it to be false, which was the primary issue for this Tribunal to decide. It is in that context that we address paragraph 73 of the Tribunal's Decision, which said as follows:

"73. Applying those principles to the evidence we heard on 1 April we do not believe that the applicant acted falsely and not in good faith. We do not believe that he was treacherous. We do not believe he said things which were purposely untrue."

As we have indicated, "acted falsely" is either irrelevant or superfluous, "treacherous" is again irrelevant and unhelpful, but on the face of it there, although there is no clear finding as, in our judgment, there should have been, that the allegation was false, the Tribunal has said, in the last sentence of the paragraph, that it did not believe that Mr Fenton said things which were purposefully untrue. On the face of it that is a finding that he did not knowingly make a false statement. Returning to the question of "misconceived", in paragraph 76, the very last sentence of the Decision, the Tribunal concluded:

"We therefore have some sympathy with his position, but there is no doubt in our mind that the description of the way he ran his Equal Pay claim falls into the category of misconception rather than falsehood and bad faith."

Once again the Tribunal returns to "misconceived", rather than reiterating, or certainly expanding on, the central conclusion that was required from it by reference to Section 4 (2). We have already indicated that we do not see how any Tribunal could have concluded otherwise than that there was falsehood, ie a false allegation. Miss Machin has submitted to us that the Tribunal erred in law in applying the wrong test. We find that difficult to accept. We have been critical of the relevant paragraphs of the Decision, to which we have referred, and we certainly agree that it did not address properly the first limb of the definition in Section 4 (2), and had it done so it would have been bound to say, in terms, that the allegation was false. But in relation to the second limb, which on any basis is the matter primarily in dispute between the parties, the Tribunal asked itself, on the face of it, the right question. It stated "we do not believe he said things which were purposely untrue" ie he did not knowingly make a false allegation. What we struggle, however, for is any understanding as to how that conclusion was reached. Miss Machin was reluctant to pin her hopes on a finding that the Tribunal was perverse, although she plainly did so by the end of her submission. She knows how difficult it is for an appellant in this Tribunal to persuade an Appeal Tribunal that the Industrial Jury, the finder of fact, was perverse, that the conclusion to which it came was one to which no reasonable tribunal could come. We certainly would be very nearly minded to have been persuaded that this conclusion was perverse. We cannot at the moment see how there can be any answer to the case, which we have summarized above, that Mr Fenton must have known that there was nothing in the EPA claim, given in particular the factors which we have set out above. The Tribunal did not begin to address how it surmounted those difficulties in reaching the conclusion it did. Mr Robinson had heard and noted exactly what Mr Fenton said and, in addition, now had the corroborative letter from Mr Cook who had given evidence as to his own incompetence before Mr Robinson, but as to the accuracy of whose record it does not appear any suggestion was made. Equally, it is not considered how the existence of a belief in a case which was in fact never made, with regard to Ms Bridge, and which, it appears, only surfaced for the purpose of avoiding the strike out in front of Mr Doyle, could sit with the belief that without the evidence about Ms Bridge there could be any case. The only answer would lie in a submission that this was, after all, the Tribunal which had heard the Victimization hearing. It was the same Chairman who had heard the Victimization hearing and the Equal Pay Act hearing, and who had been party to the Decision to order costs on the basis that the EPA claim was misconceived, and that the Tribunal had recorded that when Mr Fenton said that gender may have been the reason, he had seemed sincere, albeit that there is no further reference to paragraphs 56 and 57 of the Decision when it came to its conclusions in paragraphs 73-76 of the Decision. We are desperately reluctant to send this back to a further Tribunal. We would have preferred to have been able to resolve this ourselves. Had we resolved this ourselves we would, undoubtedly, have come to the conclusion that there was no answer to the powerful case for the Union. But we remain of the same view as we did before, namely reluctant to make a finding of bad faith of someone from whom not only, as on the last occasion, have we not heard oral evidence, but who on this occasion has not even attended at the appeal hearing, having sent us his written submissions, which we of course have read, and allowed us to decide the matter in his absence. He, in the course of those written submissions, dated 4 October 2004, does not raise, at any rate expressly, the only matter which we have raised of our own motion as being something which might possibly fall to be set against the otherwise unanswerable case that he did not believe, as he said himself in front of Mr Robinson, that there was any connection between his exclusion from the pension scheme and gender. The only comfort that we have in relation to sending this back is that we understand that there may be other unresolved issues between the Union and Mr Fenton, and that it may be possible, rather than a further hearing before the Tribunal, that this and those other issues may be capable of being resolved by agreement, after all this time. But we are driven to conclude that, by reference, if nothing else, to the case of Meek v City of Birmingham District Council

[1987] IRLR 250

the conclusion that this Tribunal reached, in one sentence in paragraph 73, "We do not believe he said things which were purposely untrue", is totally unreasoned and wholly, as it is now put in the jargon, non- Meek compliant. We do not being to understand how the Tribunal could reach that conclusion without dealing in terms with any explanation there may be for the overwhelming evidence there is pointing to the Appellant realizing himself that, without any reference to Ms Bridge, and indeed even with it – although that was never bothered with – there was no case for sex discrimination in relation to his exclusion from the pension scheme. In those circumstances we quash the Decision of the Employment Tribunal, made on the s 4 (2) hearing and send it back to a differently constituted Tribunal, for hearing of the issue as to whether the allegation made by Mr Fenton, being plainly false, was not made in good faith, namely whether it was made by him knowing that it was not true, the allegation being that his exclusion from the pension scheme was on grounds of gender or sex. We turn to deal with the balance of the appeal and cross-appeal. The appeal is, of course, not in respect of the s 4 (2) hearing, or indeed the Equal Pay Act hearing, when the Union was successful, but is in respect of the one decision at the Victimization hearing which was unfavourable to the Union, when the Tribunal unanimously dismissed the rest of the grounds. In paragraph 78 of the Victimization Decision, Mr Robinson said as follows:

"78. To each of the issues, dealt with in items (i) – (v) above we applied the test set out in paragraph 75. In each case we came to the conclusion that there was always a reason not to grant to the applicant what he was asking for. That reason however was not that the applicant had issued proceedings against the Union. In coming to our decision we have always had in mind the reasoning in Aziz v Trinity Street Taxis Ltd & Others and understood the requirement for a comparator and considered in each of the above matters how another Union member would have been treated in the absence of having done a protected act. The burden of proof is on the balance of probabilities and applying that test to the facts the applicant's application has to be dismissed."

The Tribunal then turns to the issue of failure to provide industrial relations support. This arose in this limited way, once Mr Fenton was locked into his dispute with the Union as employer. In relation to his admission to the pension scheme, he sought to resolve that in a number of ways, including the issuing of the Originating Applications, to which we have referred. He was in the later 1990s a member of the union MSF, and in a letter, which he disclosed, from an official of the MSF, the date of which is unclear to us, that official wrote:

"I find it difficult to see how continued negotiations, either through the internal grievance procedure or any other direct negotiations by Mr Fenton with the GMB, are likely to produce and results. In my view there could be substantial benefits to negotiations taking place on a lawyer to lawyer basis."

But he pointed out that that necessarily involved legal costs, and it appears, for whatever reason, MSF were not prepared to continue to assist. Mr Fenton rejoined the Union, and shortly after doing so he sought the assistance of the Union itself in pursuing his claim against itself quae his employer, or, as from August 2000, former employer. That obviously put the Union into a difficult, but not impossible, position, and, in circumstances with which we do not need to deal, it ended up that Mr Jones, one of the Regional Secretaries, was left to deal with Mr Fenton as his member, while Mr Fenton pursued a number of complaints against the Union. We have seen references to constructive unfair dismissal and unjustified discipline, quite apart from the major claim he had that he was entitled, like others, to be party to the pension scheme. There was the added complication that by the time, in 2001, when Mr Fenton was seeking industrial support from Mr Jones, he had already joined Mr Jones as a respondent in one or other of the sets of proceedings. Mr Fenton made a request in February 2001 for industrial support, namely the kind of support that a Union can give, over and above the issuing of legal proceedings, through the assistance of a legal adviser, either paid for, or at any rate recommended, by the Union. Clearly this would involve the kind of negotiations which the MSF union official had already thought would not be fruitful, and indeed it appears that Mr Jones gave evidence before the Tribunal that no such negotiations would in fact have been of any use for the reason – and this appears clearly in the Victimization Decision, to which we will refer – that a decision had been taken, it seems at the very highest level of the GMB, that the matter as to entitlement to enter the pension scheme was to be left to the courts; and if the courts were to adjudicate that Mr Fenton or others were members of the pension scheme, then of course that would bind the pension scheme, but in the absence of such a finding then the Union would not be able to agree to the introduction into the scheme of someone who was not an employee. And so a firm decision had been taken by the Union to await the outcome of any legal proceedings. What that means, although the Tribunal does not make any specific finding in that regard, is that if there had been any industrial support it would not have borne any fruit. But the complaint is of the refusal of industrial relations support. The document, upon which it is plain that Mr Fenton relied, and which was referred to, although we do not have a copy of it ourselves, in paragraph 42 of the Victimization Decision, as having been at page 226 of Mr Fenton's bundle, is one in which advice given to GMB officers in relation to the implications of the judgment in Preston and others v Wolverhampton Healthcare NHS Trust and others

[2004] ICR 993

as to part-time workers read as follows:

"Encourage members to put in eligible claims (ET1's to the Employment Tribunal) as soon as possible if they have not already done so. You will need to approach any affected employers to discuss a negotiated settlement rather than relying upon successful outcomes at Employment Tribunal."

Paragraph 43 records what Mr Jones said on 10 May 2001, namely, in a letter, "he could not ignore the knowledge in his possession": that knowledge being that Mr Fenton was refused access to pension rights because he was self-employed. Mr Jones went on to say "it seems fruitless to approach the employer with a view to negotiating along the lines advised by the GMB National Pensions Department". The Tribunal dealt with this in paragraph 79 of its Decision. It began by referring to the judgment in Aziz v Trinity Taxis Ltd and others

[1988] ICR 534

relating to causation, in which, as the Tribunal there recorded, the appeal failed on behalf of the original applicant, because he could not show, to the satisfaction of the Court, that he was victimized because of his reliance on the Act, and it turned to consider the then relatively recent judgment in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

. We shall turn, in a moment, to how the Tribunal dealt with that judgment.

(f) that they were:

"…much taken with the information sent out to GMB officers [which we have quoted] which required GMB officers to discuss negotiated settlement, rather than relying upon successful outcomes at the Employment Tribunal"

(g) the Tribunal said as follows:

"The reason that Mr Jones gave in evidence for not giving the applicant industrial relations support was that the applicant had issued proceedings and it was necessary to find out what his employment status was first. In other words Mr Jones felt that the issues against the National Union should be resolved so that it could be established as to whether the applicant was an employee and entitled to certain benefits or not before he did anything for the applicant in terms of industrial relations support."

Then they referred, in subparagraph (h), to the fact that Mr Jones said that he knew what the outcome would be of an approach to John Edmunds, and to the fact that Mr Jones regarded the applicant as a "difficult member", an argument by which they said they were not particularly impressed.

(j) :

"(j) In relation to Mr Jones not approaching Mr Edmunds the General Secretary we found the evidence of Mr Kenny [who was apparently another Regional Secretary who was allocated to represent the interests of Mr Bradford] persuasive when he suggested that it was right and proper for him to support Mr Bradford's similar application for industrial relations support to see if a negotiated settlement could be reached. Mr Kenny made himself, apparently, very unpopular within the Union by taking this approach. (k) From the evidence it was Union policy to fight a reluctant employer (who is denying employment status) on two fronts by not only supporting the employee's application to the Employment Tribunal but also by seeking to negotiate a settlement with that employer. (l) We believe having heard the evidence of Mr Jones that fundamentally he agreed with that policy position as well. (m) Therefore it seems all the more strange that he did not follow through that policy in dealing with this applicant."

The conclusion of the Tribunal, provisionally, before it then deals with the issues raised by the House of Lords judgment in Khan , was as follows, in subparagraph (n):

"(n) It was clear, therefore that Mr Jones took the view that he should not provide industrial relations support because the applicant had issued proceedings (the protected act). On the face of it it seems immediately that Mr Jones has victimised the applicant because the reason why he was not giving support to the applicant was because of the existence of the proceedings."

Miss Machin attacks that statement of the Tribunal's understanding of the law as wrong, not only in the light of Khan , but indeed by virtue of the words of Section 4 (1) itself. She submits that the words of Section 4 (1) are not that victimization results where there is unfavourable treatment because of the existence of the proceedings, but where the unfavourable treatment is by reason that the person victimized has brought proceedings.

(o) it continues as follows:

"(o) However we believe the test as defined in Khan above is much more subtle and refined."

And it then deals in subparagraphs (p), (q), (r), (s) and (t) with what arises out of Khan , beginning with subparagraph (p):

"(p) We felt we had to look at the core reason and motive for the treatment complained of by the applicant."

The conclusion it then reached is in subparagraph (u):

"(u) In other words the applicant needed industrial relations support at the time that he asked for it and Mr Jones victimised him by turning down his request partly (and that is enough) if not wholly on the basis that the applicant had issued those proceedings. Mr Jones in our view was wrong to do that as he had an injunction from [and Miss Machin criticizes the use of the word "injunction", clearly advice is all that in fact the regional secretaries had] from the Pensions Department to follow the twin track approach and assist a member to negotiate a settlement if possible whilst at the same time helping the applicant pursue an Employment Tribunal application. We accept the evidence put before us that that would be normal Union procedure and policy. We believe that it is something that on another occasion Mr Jones would have offered his members and Mr Jones failed the applicant in this respect when one compares the treatment of this applicant "with other persons" as required by Section 4 of the 1995 Act."

It was therefore, as the Tribunal says itself in paragraph 80, "on this narrow ground" alone that Mr Fenton succeeded, and the conclusion was:

"It is our decision that the applicant received less favourable treatment for pursuing a protected act and he received that treatment because he had brought claims in the Employment Tribunal against the GMB as his potential employer."

Miss Machin refers to Khan for two reasons: (1) She submits that, if anything, the Tribunal should have found Khan favourable to the Union. (2) In making use of Khan for the purpose it did, namely to support a conclusion in favour of Mr Fenton, the Tribunal misapplied Khan . Khan can be described very shortly. It concerned a situation in which a complaint was made against an employer for refusing to provide a reference, and it was said that it was victimization because the employer was not prepared to give a reference as a result of the existence of proceedings, when the position taken by the employer was that it must await the outcome of the proceedings, and then would give its reference, one way or the other, in the light of the outcome of those proceedings. Plainly in such a case there would be bound to be a reference sought whatever the outcome of the proceedings; it would no doubt be either better or worse as a result of the outcome of those proceedings. The point that Miss Machin understandably made is that the House of Lords very carefully explained that the fact that the conduct of an alleged victimizer is coloured by, influenced by, motivated by, the existence of proceedings does not necessarily lead to a conclusion that any unfavourable treatment is by reason of the person victimized having brought proceedings; and in that case the refusal of the reference was because no reference was possible to be given at that stage because of the pending proceedings, but there was no refusal by reason of the fact that the Applicant had brought such proceedings. That stands to reason, although it does require a little analysis, such as was eventually given by the House of Lords. What in our judgment this Tribunal did was not only, perhaps, not take full account of – certainly as Miss Machin would say it did not, in relation to the care that is required to be taken before deciding questions of causation – but actually apply far too literally, and far too much by reference to the facts of the case, what it deduced from Khan .

(q) of paragraph 79:

"(q) We asked the question would the Union have refused the request if the litigation against the National Union had been concluded whatever the outcome?"

That of course is a relevant question on the facts, where the issue is delay of a reference. It does not appear, to us, to be a relevant question where the issue is not delay in the granting of industrial relations support, but a statement that industrial relations support will not or cannot be given during the pendency of proceedings, and particularly so if analysed, as indeed the Tribunal goes on to do. If the proceedings had been successful, so far as Mr Fenton was concerned, and he had been shown to be an employee, there would have been no call for industrial relations support because he would have been an automatic member of the pension scheme, and if he were unsuccessful it is likely that any industrial relations support would have been of no conceivable purpose, because if he were not an employee it would seem difficult to see how he could be admitted to the scheme on some gratuitous basis. The Tribunal, however, made, if we may say so, a little heavy weather of what should have been an obvious answer in that regard, and in subparagraphs (r), (s) and (t) it concluded that the answer to its question in (q) was no, and thus that Khan would not apply. We do not agree with this approach. It appears to us that, as we have indicated, they were taking too factual an approach towards Khan , and that the precise question in Khan was not of relevance in this case. Does the inappositeness of the Tribunal's reliance on Khan undermine the conclusion that it reached? It is clear to us that, although in its initial summary of the position in subparagraph (n), to which we have referred, it refers to "the existence of the proceedings", by the time it reaches it conclusion, which we have quoted, in paragraph 80 it is apparent that the question which it is thereby answering relates to the reason for the treatment being "because he had brought claims in the Employment Tribunal against the GMB as his potential employer." The points that Miss Machin made to us are all very strong points: (1) That it was actually the right decision not to indulge in industrial relations support, because it would have been quite pointless, and because the MSF Union had already concluded it was pointless. (2) That in fact the advice from the Union, cited in paragraph 42, was irrelevant, because Mr Fenton's claim, at any rate on the basis of the Union's understanding, was not in any way on all fours with Preston , and depended wholly on whether he was an employee or not, and not, or not specifically, on any question of part-time working, so that the guidance to Mr Jones would not have been apposite. (3) That there were other reasons for Mr Jones not pursuing the industrial support, including the fact that there was somewhat of a difficulty in relation to his own position, and the fact that the Union was the employer and Mr Edmunds had laid down what the Union's policy was to be. However, we can see that the Tribunal was particularly impressed by the comparison of the position of Mr Fenton with that if Mr Bradford, whose proceedings were no longer on foot because they had been struck out, as we have described, by Mr Doyle, while Mr Fenton's were extant; and whereas, of course, that is still consistent with the Union's case that the Union wanted to await the outcome of pending proceedings, nevertheless one would have thought that, in relation to Mr Bradford, there was little further that could be done by way of industrial relations support if he had no outstanding proceedings, and that it would have been much more sensible that, if there was a policy of delay, Mr Bradford's position would not have been pursued until the resolution of proceedings brought by Mr Fenton. It is difficult, other than what Miss Machin points out to us is actually reflected in the Tribunal's Decision, namely a difference of view between Mr Jones and Mr Kenny, to see the justification for the difference in approach. The Tribunal saw quite simplistically the difference as being that Mr Bradford was not bringing proceedings, albeit that he had done, and that Mr Fenton was still doing so, and that whatever might otherwise be said, and no doubt was said, by Mr Jones in evidence, the Tribunal saw one simple answer to the question as to why industrial relations support was refused to Mr Fenton. We can entirely see that a different decision might have been reached, against that kind of background, as to whether the Union's decision that industrial relations support was to no purpose whilst the proceedings remained outstanding, and that this was not a Preston case, was perfectly justifiable. Nevertheless Miss Machin herself does not feel able to characterize the Decision of the Employment Tribunal as perverse, and we are entirely satisfied that, absent the inapposite references to Khan , this Tribunal applied the correct tests and reached a conclusion which cannot be challenged. In those circumstances we dismiss the Union's appeal in this regard. Finally the issues raised on the cross-appeal. Although Mr Fenton is not here, we have considered his submissions very carefully. We are quite plain that, so far as the conclusion of the Tribunal is concerned, set out in paragraph 37 of its Remedies Decision of 29 July 2002, that cannot be challenged in law. The Tribunal said:

"The decision of the Tribunal is that the applicant should receive £1,000.00 in full and final settlement of his claim for injury to his feelings."

The Tribunal point out, in that same paragraph, that the refusal of industrial relations support added to his distress and frustration. It is plain that it was satisfied, as will appear, that it did not cause the distress and frustration, which of course were largely caused by his no doubt considerable frustration and anger as a result of not being included in the pension scheme to start with. At paragraph 38 the Tribunal point out that the "applicant won his case on a very narrow issue", one of six different grounds of complaint. So, quite apart from the distress and frustration resulting from his absence from the pension scheme, he also no doubt felt distress and frustration resulting from the other grounds in respect of which he had not managed to establish responsibility on the part of the Union; and this is expanded in paragraph 39, with an indication from the Tribunal, in paragraph 40, that most, if not all, of his other claims predated the refusal by Mr Jones to give Mr Fenton industrial relations support. The conclusion in paragraph 43 was that Mr Fenton's problems, medical and psychological, did not flow alone form the successful part of his claim. The Tribunal emphasized that it understood that there was an exacerbation of the position by virtue of the one successful claim, but in paragraph 45 it said as follows:

"45. Using a broad brush approach we have to limit the damages to a relatively small amount. We cannot order such a sum which ignores the wrong done to him. Equally it would be wrong to lay all the medical problems and psychological difficulties the applicant has in coming to terms with his conflict with the Union at the door of the refusal to give the applicant industrial injury support. Our task was to determine what effect the discrimination had on the life of the applicant and to establish the degree of hurt, distress and humiliation he suffered."

They refer to "judicial guidance set out in many cases", in paragraph 49, and remind themselves of the substance of such guidance. We are satisfied that that Decision was not perverse, given the difficulty which, as we have already to it, this Tribunal has in concluding that an employment tribunal has been perverse, and in any event we do not disagree with the conclusion, which is one which we would have reached ourselves. The only other surviving matters relate to costs and interest. We are satisfied that there is no basis on which the conclusion of the Tribunal that neither party should pay costs, recited in paragraph 51 of the Remedies Decision, can be challenged. Once again such a conclusion could only be challenged on the basis of perversity and no case is put forward in that regard by the appellant. We turn now to the question of interest. Mr Fenton's point is a short one. The Employment Tribunal attached a page making reference to interest with regard to the Employment Tribunals Interest Order 1990 , and specified that the relevant Decision day was 3 September 2002 and the calculation day was 14 October 2002 and that the stipulated rate of interest was 8%. 3 September 2002 was of course the date when the Reasons for the Remedy Decision were handed down. There is no specific reference to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 to which Mr Fenton makes reference in his Respondent's answer, and the Tribunal was at least required to consider whether interest should be awarded for the period beginning with the act of discrimination complained of and ending on the day of calculation. There is reference in Regulation 7 (1) to the tribunal's written statement of reasons needing to contain a statement showing a table as to how interest has been calculated, and to include, by 7 (2), the reasons for any decision not to award interest under Regulation 2. Plainly there is only a relatively small sum at stake. The interest rate that was chosen by the Tribunal, which itself seems in these days somewhat excessive, of 8% was only to run from 3 September 2002, and it may be that the Tribunal would have concluded that it ought to have run from 10 May 2001. We shall in those circumstances, given the absence of Mr Fenton and the acquiescence of Miss Machin, on behalf of the Respondents, substitute a conclusion that interest, at that rather high rate, runs not from the date of 3 September 2002, but from the date of refusal of industrial relations support, namely 10 May 2001. In those circumstances the appeal by the Union against the Section 4 (2) Decision is allowed, and the issue, to which we referred earlier in this Judgment, is remitted to a different Employment Tribunal for consideration. The appeal by the Union in respect of the Victimization decision is dismissed, and the cross-appeal by Mr Fenton in respect of the quantum of the award and of costs is also dismissed. So far as his cross-appeal on interest is concerned, that is allowed to the extent of substituting the earlier date for interest to run, to which we have referred. It is quite plain to us that if this case really does have to be reheard by an Employment Tribunal, in all the circumstances it must be a different Tribunal; in circumstances in which we have been reluctantly driven to send the matter back, for the same Tribunal to have a third bite at the cherry does not seem at all sensible.