MR F B LEE v HOME OFFICE [2004] UKEAT 0893_03_1602

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0893_03_1602

Case No Appeal No. UKEAT/0893/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR F B LEEAPPELLANT

HOME OFFICERESPONDENT

Before

His Honour Judge J McMullen

Date 16 February 2004

[1]APPEARANCES For the Appellant MISS NABILA MALLICK (of Counsel) Instructed by: Messrs Duncan Lewis & Co Solicitors 1 Kingsland High Street Dalston London E8 2JS For the Respondent MR PAUL NICHOLLS (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS SUMMARY Race Discrimination and Victimisation ET failed to cite the law or any authorities yet EAT upheld its dismissal of A's complaints for it expressly referred to the relevant concepts and applied Fearon v Derbys CC EAT 16/1/04. Topic 13A 13C. HIS HONOUR JUDGE J McMULLEN QC This case is about the correct approach to race discrimination and victimisation when the allegations span a long period of time and none is upheld, singly or in aggregate. We set out the law at paragraph 52 and our conclusions, dismissing the appeal at 53-59. The judgment represents the views 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 the reserved decision of an Employment Tribunal sitting over six days at London (Central), Chairman Mr C A Carstairs, Dr S N Deshmukh and Mr M S Howe, registered with Extended Reasons on 12 June 2003.

[3]The Applicant was represented today by Miss Nabila Mallick. He had been represented at the Employment Tribunal by different Counsel and different solicitors. The Respondent was represented there and here by Mr Paul Nicholls of Counsel. Both Counsel at the Tribunal made full written submissions which understandably the Tribunal did not find it necessary to reproduce.

[4]The Applicant claimed unfair dismissal, race discrimination, victimisation and breaches of Articles 6, 8 and 14 of the European Convention on Human Rights . The Respondent denied race discrimination and victimisation but accepted the decision of the Civil Service Appeal Board that the Applicant's dismissal was unfair. It contended that such unfairness was for procedural and not substantive reasons. It alleged the dismissal would have happened at the same time, even if a fair procedure had been carried out. The Issues

[5]The essential issues, as defined by the Employment Tribunal, insofar as they survive on appeal, are as follows:

"26 June 2001 Originating Application 2201128/01: this comprises a complaint of race discrimination and in respect of later matters also victimisation. Various matters are complained about both individually and as together amounting to an act extending over a period. In respect of matters which occurred or are alleged to have occurred more than three months before the issue of the Originating Application, there are time issues to be considered: 1. … 2 1998 request for special boots refused by Ms Barry. 3. February 1999 harassment and intimidation intensified by manager Ms Gray, this being an issue about sickness absences. 4. 21 June 1999 the Applicant asked for and was refused a supervisor appointment by Ms Barry. 5. (Date unknown) Ms Barry said the Applicant could not look after himself let alone run a store room. 6. … 7. 2 August 1999 (following an incident regarding a hospital appointment notification) the Applicant was told he should apologise (to Ms Gray). 8. (Date unknown) Ms Turner failed to deal with the Applicant's concern about his extended probation period. 9. 27 October 1999 what the Respondent told the police that led to a police heroin raid (on the Applicant's home) and the Respondent's suspicion of the Applicant having unauthorised liaisons (with prisoners) for which he was suspended for six months. 10. 27 October 1999 an issue identified as involving Ms Turner in respect of one day's sick leave on 25 October 1999 (that one day not being paid). 11. 28 October 1999 the Applicant being suspended (referred to above in paragraph 9). 12. 7 July 2000 Governor Davies's response, the complaint being that he failed to apologise for the police raid. 13. 10 April 2001 as well as 30 April and 4 May 2001 that no assurances were provided to the Applicant as requested, the second Originating Application referring to the fact that Governor Davies did not reply to those letters. 14. 2 May 2001 the Respondent threatening the Applicant with dismissal for absences. 18. January 2002 second Originating Application 2200528/01: race discrimination, victimisation and unfair dismissal (the Respondent accepting that the dismissal was unfair but contesting remedy). 15. 15 October 2001 the letter of dismissal effective 19 October 2001 – race discrimination/victimisation. 16. 15 October 2001 unfair dismissal effective 19 October 2001."

[6]The Tribunal decided that the Respondent unfairly dismissed the Applicant but did not unlawfully discriminate against or victimise him in any single act or as an act continuing over a period of time. The Respondent does not appeal the former, nor does the Applicant appeal against its depiction as a procedurally unfair dismissal. A hearing is awaited on remedy.

[7]The Applicant appeals against the decisions on race discrimination and victimisation on 11 grounds, ordered to be particularised by Burton P and later by myself. I gave directions sending this appeal to a full hearing together with other case management directions. One of them was to invite the Tribunal to record its consideration of certain matters in the Notice of Appeal as to which it was said no finding was made. The Tribunal has produced its decision and reasons on those matters and we are very grateful to the Chairman for them. The Legislation

[8]The relevant provisions of the legislation begin with the Race Relations Act 1976 , section 1 (1) (a) which provides for race discrimination to be outlawed: 1 (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…"

[9]Section 3 (4) requires a relevant comparison to be made: 3 (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."

[10]Section 2 provides for discrimination by way of victimisation: 2 A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant to 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 he 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

(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.

[11]Section 68 provides for limitation, which in general is three months, but may be extended if it is just and equitable to do so. Section 68 (7) deals with what is known as "a continuing act". 68 (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; and

[12]The Employment Tribunal directed itself expressly to only section 68 (7). It did not refer to any of the leading authorities on this subject, except for Polkey vAE Dayton Services Ltd

[1998] ICR 142

which, for reasons which we have given above, was not in play at the hearing. The Facts

[13]The Respondent, pursuant to the judgment of the Court of Appeal in Grady v Prison Service

[2003] ICR 753

, 765 is the Home Office. The Applicant, who is black, was employed in the Prison Service, which is an executive agency of the Home Office, at HM Prison Pentonville in North London. The prison had about 1,100 inmates at the relevant time. It employs 654 employees, of whom 145 were Operational Service Grade, as was the Applicant. There are others in grades above and parallel and there is a substantial personnel department. The Applicant was employed from 24 November 1997 until the relationship ended by his dismissal on 19 October 2001. His salary at the relevant time was £15,379 a year.

[14]The principal actors in this drama are Mr Davies, the Governor, Ms Archer, the Applicant's line manager, Ms Barry, the Head of Personnel, Ms Gray, the Applicant's manager for a time, Mr Poselay, the Head of Security, and Mr Jux, who was also an Operational Support Grade, working alongside the Applicant. Apart from Mr Jux, they gave live evidence before the Employment Tribunal and some other evidence was read.

[15]The Applicant's career included the following landmarks. In 1998 he made a request for special boots. He was on three days' sickness absence between May and June 1998. The relevance of what we will describe as these periods of absence becomes clear on reading the Notice of Appearance, for the Applicant was dismissed, according to the Respondent, because of his attendance.

[16]In July he had a further two days' absence. On 27 November 1998 his probation was extended. He subsequently had five days' sickness. He was absent on 1 April and on 21 April 1999 received an oral warning about his absence. Ms Archer confirmed his probation on 14 May 1999 when he again had a further 15 days' sickness absence. On 2 August 1999, following the Applicant shouting at Ms Gray, he was told to apologise to her. He had a further warning about his attendance on 5 August 1999 and on 11 August was referred to the Sickness Management Board. On 25 August both he and Mr Jux were warned about their conduct. On 23 September 1999 the Applicant was confirmed in his post which was backdated to 14 May that year. In October 1999 the Applicant had 17 days' sickness in two trenches. He produced a sick note covering 10 of the 11 days of absence.

[17]On 28 October 1999 what the Tribunal, and we are sure the Applicant, regarded as a significant event occurred which was that the Applicant's house was raided by police searching for heroin. The Applicant was suspended. On 12 April 2000 this was lifted. On 28 April he went absent from work and never returned. He was referred to health consultants BMI who operate in the public sector assessing questions of health of employees and public servants. On 28 June 2000 the Applicant filed a grievance about institutional racism, to which a reply was given by Governor Davies. The Applicant attended and a report was duly made by BMI upon his future.

[18]On 18 September 2000 Ms Turner complained about abusive language which he had used. The Applicant shortly thereafter asked for an excusal of sick leave, for which the response from BMI was that an examination was required. BMI reported on 23 March 2001. On 6 April 2001 it was indicated by Governor Davies that he intended to dismiss the Applicant for poor attendance.

[19]On 10 April 2001 the Applicant indicated that he would soon return. The intention by Governor Davies continued. On 8 May 2001 BMI was unable to support the Applicant's application for sick leave excusal. A request was made for further time to respond to Governor Davies's letter which was granted. A second request was refused.

[20]On 22 June 2001 the intention to dismiss was suspended pending an appeal. It was followed shortly thereafter by the first Originating Application in this case. In August 2001 the Applicant did not attend his appeal. It was dismissed on 15 October. He appealed, as was his right, to the CSAB (which we have mentioned) on 10 December 2001. Between that and the final determination his second Originating Application was presented on 15 April 2002 the CSAB found that the dismissal was procedurally unfair.

[21]The principal allegation raised by the Applicant in his original application was of an ongoing treatment of him which was racially discriminatory and constituted harassment. It was said to be a continuous act of discrimination. The Tribunal decided that it would consider both individual acts and all of the acts in aggregate, as is clear from its list of issues.

[22]Thus the Tribunal dealt analytically with each of the 16 matters. It was a matter for its discretion to decide how to deal with the contention by the Respondent that most of these matters were out of time.

[23]The Tribunal came to the conclusion that all matters prior to 27 March 2001 were out of time. It therefore became relevant to consider whether it should exercise its discretion to allow the claims to be validated. It considered whether it was just and equitable to do so. The principal basis on which it declined to exercise its discretion in the Applicant's favour was that in June 2000, the previous year, the Applicant had been advised by his trade union. He believed a complaint had been made on his behalf under the Race Relations Act 1976 by his union at that time. He discovered that it had not been and yet he took no further action.

[24]Later that year, in October 2000, the Applicant was notified he was out of time to bring a complaint but took no further action until 2001. The Tribunal found as follows: 66. "No explanation was provided for the failure to present the complaint in the summer of 2000. Accordingly the Tribunal has accepted the submission on behalf of the Respondent that the Applicant must have decided not to issue proceedings but later changed his mind. The Tribunal therefore concluded that unless it found that those earlier matters comprised an act extending over a period, which period did not expire before 27 March 2001, the earlier complaints were out of time and it was not just and equitable to consider them."

[25]Having thus decided not to exercise its discretion, it was technically unnecessary for the Tribunal to decide as a matter of substance whether each of the issues prior to 27 March 2001 was an act of discrimination. It was of course concerned to consider whether in aggregate they presented a picture constituting a continuing act of discrimination.

[26]The Tribunal nevertheless went into each of the issues which it had identified and made a decision. In each case the decision was against the Applicant unanimously with one exception which was by a majority. The approach of the Tribunal was to take each complaint. It is necessary for us to give a brief summary of its findings. We will take the issues which are in play (paragraph 5 above), but it should be noted that two issues which are not the subject of appeal involve firm findings against the Applicant's case which have not been processed to an appeal. Issue 2

[27]The Tribunal decided the Applicant failed to make out his claim on the facts. It had been left for the Applicant to provide medical evidence and he took no further action. Issue 3

[28]This deals with whether or not there were deductions. It was decided that the Respondent would have taken the same step in similar circumstances regardless of the Applicant's skin colour. This is linked to Issue 10, where the same conclusion was reached. Issue 4

[29]The Tribunal found that although the Applicant had asked about a supervisor appointment none was available. The Applicant, with others, was considered unsuitable at the time. The decision was not made on the grounds of race. There was no vacancy for which any of the relevant persons was eligible. Issue 5

[30]The Tribunal found there was no evidence to support this allegation and it therefore failed. Issue 7

[31]It was found that the Applicant should not have shouted at his manager Ms Gray. The Tribunal concluded that a white person would have been asked to apologise in the same way as was the Applicant. Issue 8

[32]The failure to address the Applicant's concern over the extension of his probation period affected more than six other people. We have been told today there was no evidence as to the racial group of any of the six persons. It seems to us, therefore, that the Tribunal's conclusion that the procedural failure eventually applied to all of them and had nothing to do with the Applicant's race, or theirs. Issue 9

[33]Both persons whose homes were raided were black. The Tribunal took the view that the suspension of the Applicant following the raid was understandable in the light of the allegations made. The raid was not conducted by the Respondent but by the police. The Tribunal concluded that the Respondent was entitled to find that the matter was so serious that it could not be ignored. This is not held by the Tribunal to be an act of discrimination. It is linked to Issue 11 where the same conclusion applies. Issue 12

[34]The Tribunal found that there was no reason for Governor Davies to apologise for what had happened, either as to the action or as to the words used or sought to be incorporated by the Applicant. Issue 13

[35]The Applicant wrote, what the Tribunal found to be, two letters seeking an assurance that there would be no further repeat. Again, the Tribunal's approach was to support the Governor's view that it was not appropriate to give such an assurance. The Tribunal held that the same approach would have been taken in respect of a hypothetical white comparator.

[36]As to whether this was an act of victimisation, the Tribunal divided, with Dr Deshmukh in the minority holding that the failure to respond to the Applicant's letter amounted to victimisation; that Governor Davies should have responded in some way and could have given the assurance the Applicant sought. The majority held, as we have indicated above, that the failure to respond did not amount to victimisation. The reason for that approach applied equally to the conclusion that there could be no inference of race discrimination against the Governor in that case. Issue 14

[37]The Tribunal held that the Applicant had not returned to work and there was no indication of whether he was in a position to return. The Tribunal concluded that the threat of dismissal, in accordance with the Respondent's procedures, was inevitable. There was nothing to indicate a white person would be treated in any way differently. Issue 15

[38]The Applicant did not attend. He alleged that there was a racist conspiracy. Mr Smith, who had made the decision to dismiss, was not connected to any of the earlier events. He was not called to give evidence before the Tribunal, to provide an explanation as to his decision to proceed to the appeal without hearing from the Applicant. The Tribunal went on to say this: 89 "However, having regard to his lack of previous involvement and the lack of any evidence to link him to any of the other people about whom the Applicant complained or any evidence to suggest either conscious or unconscious discrimination or victimisation, the Tribunal concluded that it would not draw an inference that Mr Smith had, in the way he acted, discriminated against the Applicant on the ground of race or victimised him." Issue 16

[39]Here the Tribunal accepted that the Respondent had acknowledged the judgment of the CSAB that the dismissal was unfair. The Tribunal found that the Applicant had not attended the appeal because of bereavements in his family as well as his own poor health. The Tribunal was of the view that if Mr Smith had acted fairly he would have re-arranged the appeal for a month later but concluded, pursuant to the principles in Polkey (above), that the dismissal would have been confirmed at that time.

[40]Having made those individuated decisions, each in accordance with section 1 of the Race Relations Act 1976 , and formally dismissed each one as a subsisting claim at issue in the Tribunal, the Tribunal then turned to what might have been thought as the principal ground in the Originating Applications; that is, whether there was an act extending over a period.

[41]The Tribunal considered specifically section 68 (7) (b) above and came to this conclusion: 92 "The Tribunal considered whether all the matters complained about could cumulatively have amounted to an act of discrimination on the ground of race extending over a period, in accordance with section 68(7)(b) of the 1976 Act. It is possible that a number of matters which individually might not appear to amount to discrimination on the ground of race might cumulatively amount to such an act of discrimination. For example, an employer might be able to justify why it took action in respect of a number of matters where the employer could have acted either way, its decisions being in the way it did in marginal situations to the detriment of the employee must be because [of] conscious or unconscious discrimination. The identify this, the Tribunal should look at all the circumstances in the round to see if it builds up a picture of such discrimination. 93 However, in this case no such picture is created. Only one of the actions appeared to the Tribunal to be 'marginal', the failure by Governor Davies to respond at the time to the Applicant's requests for assurances that there would be no repeat of the racism to which he believed he had been subject. Otherwise, it was clear that the Applicant was treated in a comparable way to his colleagues when he had his probationary period extended and they were warned that they were going to be monitored over the next three months. The Applicant was then formally placed on the sickness absence procedure. However, this did not occur as soon as he had hit the procedure's trigger point. He was only placed on it some time later. This did not suggest to the Tribunal that the Respondent had acted at the earliest possible opportunity. The major matter about which the Applicant complained related to the police raid and his suspension. However, as indicated above, the Tribunal was of the view that the Respondent acted in the only appropriate way. 94 Accordingly, the Tribunal has concluded that the various matters about which the Applicant complained do not together amount to an act of discrimination extending over a period."

[42]The conclusion overall, therefore, was that issues 1 – 12 were out of time and dismissed for want of jurisdictions and issues 12 and 14 failed. By a majority issue 13 failed. The Applicant's Case

[43]In oral argument and in a Skeleton Argument prepared by Miss Mallick, who has been instructed at the last minute in this case and has done very well to get up to speed with it, a number of points are taken; 11 in all. She reminds us that the approach in a Tribunal should be that enjoined by Morison P in Tchoula v Netto , cited with approval in Anya v University of Oxford

[2001] IRLR 377

; that is, to be sensitive in race relations cases to the feelings and the understanding of the parties, to use careful language and to make decision on the issues.

[44]The ten substantive grounds upon which the appeal is based commence with an allegation of perversity; that is, that the Tribunal failed properly to consider the material before it. In this regard the primary complaint relates to the letter of complaint by the Applicant alleging a policy of institutional racism and the failure by the Respondent to deal with it. It is contended that there were mistakes made by the Respondent which were not simply coincidence since there were too many of them. The Tribunal's answer to these points defied common sense and they related to a significant issue; sound industrial practice required common sense to be deployed which did not occur in this case compounding error upon error.

[45]It was contended that a question of law arose in relation to the threat of dismissal made on 6 April. The Applicant sought assurances. He relied upon the judgment of the EAT in Barton v Investec Henderson Crosswaite Securities Ltd

[2003] ICR 1205

. The Tribunal was criticised for citing no authority and for not applying the well-known authority of King v Great Britain Centre

[1991] IRLR 513

(CA). It was contended that if facts were in place which indicated that an inference could be drawn, such inference should be drawn, citing Zafar v Glasgow City Council

[1998] IRLR 36

. It was also contended that the correct approach to finding discrimination was to apply the band of reasonable responses test enunciated primarily in Iceland Frozen Foods v Jones

[1983] ICR 17

EAT per Browne-Wilkinson P. It was contended that the Tribunal had failed to consider certain elements of the evidence and had failed to provide proper reasons for its decision: see Meek v City of Birmingham District Council

[1987] IRLR 250

[46]Each of the grounds set out in the Notice of Appeal relating to the issues which we have described was addressed. Criticism was made that the Tribunal had failed to cite the correct statutory provisions, apart from section 68 (7) which we have mentioned.

[47]In conclusion, the Tribunal had failed to exercise its discretion on the extension of time according to judicial principles. The Respondent's Case

[48]On behalf of the Respondent it is contended that this case does not reach the threshold required for a decision on perversity: see Crofton v Yeboah

[2002] IRLR 634

(CA). The first allegation of perversity therefore fails. The correct approach to the law is not that set out in Barton but as is set out in The Law Society v Bahl

[2003] IRLR 640

. Barton follows the change in the burden of proof (in sex discrimination), Bahl is earlier and the decision in the instant case preceded the change in the burden of proof for race discrimination cases.

[49]As to ground 2 it is contended that the Applicant's premise is incorrect. The Tribunal has used a hypothetical comparator and has given a satisfactory explanation. Although not giving express citation from the statute, its use of such phrases is sufficient to acquit it. The correct approach to the decision as to whether a comparator is apt or not is to examine the judgment of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

which requires a less rigid approach and acknowledges the question as being whether the reason for the decision was discriminatory.

[50]Adequate reasons were given and in respect of other grounds the Tribunal's decision should be upheld. Certain issues were correctly regarded as evidentiary, such as are provided for by the Tribunal's decision at paragraphs 13 to 15 dealing with uniform, vaccinations and a jail craft course, which were not set out as issues, but nevertheless represent findings by the Tribunal appropriately disposed of as evidentiary matters, if not expressly so.

[51]The correct approach to this case, it is submitted, is found in the judgment of the EAT in Fearon v The Chief Constable of Derbyshire (

UKEAT/0445/02/RN

) 16 January 2004. Of the two issues identified by the Tribunal as being against or possibly against the Respondent, they do not constitute a regime. The marginal case (see the citation we have given above) of the victimisation following the decision by the majority is one aspect. The Tribunal fully considered that and did not consider that it constituted a regime. It also considered the concession on unfair dismissal, but that was taken by a disconnected officer and the judgment of Mummery LJ in Hendricks v Commissioner of Police

[2003] IRLR 96

is applicable: see paragraph 49. The Legal Principles

[52]The legal principles appear to be as follows. A Tribunal should give reasons for its decision that are sufficiently exigible to the parties and on appeal: see Meek . The test of perversity for a decision of an Employment Tribunal is set out in Crofton v Yeboah . There must be an overwhelming case indicating the Tribunal has so misunderstood the evidence. The approach to issues of discrimination was summarised in the judgment in Fearon (above) at paragraphs 81, 82, 88 and 91. It is apparent that the judgment of Bahl applies to pre-burden of proof change cases. Barton is post-change. In cases of race discrimination inferences are generally the way in which conclusions are reached, since direct evidence of race discrimination is rare: see King v Great Britain China Centre

[1991] IRLR 513

. It is to be noted that there is no legally-recognised wrong of institutional racism and a Tribunal should not approach a case on such grounds, except possibly as evidence of some more specific alleged breach of the act: see Lindsay P Commissioner of Inland Revenue v Morgan

[2002] IRLR 776

. Such is adopted by Mummery LJ in Hendricks at paragraphs 48 and 52. Conclusions

[53]We reject the arguments of the Applicant and have decided the appeal should be dismissed. In particular we reject as inimical to anti-discrimination legislation the contention that the correct approach to finding discrimination is to apply the band of reasonable responses test upheld in Iceland Frozen Foods . We uphold the submissions of the Respondent.

[54]We will deal first with the criticism of the Tribunal for failing to set out the applicable law. It has to be said that this Tribunal did not set out either the relevant statutory provisions or any of the authorities which are in play in this case. Such an approach is not acceptable practice and, following the change in the regulations which are currently out for consultation, will not be acceptable as a matter of law.

[55]However, as a matter of substance we have considered most carefully the submission made by Mr Nicholls and uphold it that this experienced Tribunal in relation to discrimination matters, was fully aware of the principles which the legislation requires it to apply. It uses terms which portray its understanding of the legislation, for how else would it get satisfactory explanation, protected act, hypothetical comparator, less favourable treatment, similar circumstances, a comparison with a person who would not make a complaint? All these are clearly referable to the provisions of the statute. So although it will generally not do for an Employment Tribunal to fail to set out the applicable law, we consider that the Tribunal's failing in this case is rescued by its conscientious description of the correct principles it was applying.

[56]We reject the contention that the Tribunal has failed to give reasons. This is a case in which, unusually, it was required to dispose of substantial allegations and to consider them in aggregate. It has given reasons for each of the decisions it made on the issues as agreed by Counsel and has stood back. The Tribunal is required so to do. We reject the contention made by Miss Mallick that when the Tribunal says it is doing just that it is doing something else. The paragraphs we have cited at paragraphs 92 and 93 from the reasons show a conscientious approach by the Tribunal to standing back from its original decisions.

[57]In a case where a Tribunal is looking solely at evidentiary facts, there may be more scope for a different decision to be entered when it stands back. But here, the Tribunal had tested to destruction each of the issues against the rigorous standard of the statute. It found against the Applicant on every single one. Then, on standing back, it was in a better position to come to the conclusion that there was no discrimination, but it did not overlook both the marginal finding shown by the majority decision, which we have recorded, or the concession on unfair dismissal. The Tribunal nevertheless concluded that there was not connecting those a sufficient thread to enable it to be said that there was an ongoing regime of discriminational victimisation against the Applicant.

[58]As we have said, we reject the complaint made in this case that the Tribunal did not adopt the correct approach to the burden of proof. Barton did not apply, but King did; that is why the Tribunal sought explanations. In truth, much of this case is about a criticism by the Applicant that the Respondent's explanation has been accepted over his. Well, we can understand the disappointment of the Applicant in seeing so many of his complaints rejected on that basis, but we can see no grounds for suggesting that the Tribunal had no evidence upon which to make the conclusion it did individually or that all the evidence was going one way against such a conclusion. The criticisms failed to meet the high standard required in a complaint of perversity.

[59]The Tribunal has, in our judgment, although making its decision in advance of Fearon , complied with it. It must be remembered that in Fearon the Tribunal knocked out every individual allegation and went inevitably to the conclusion that there was no overriding regime and in that it fell into error. No such error appears in this case. The Tribunal knocked out every allegation but then clearly stood back and reviewed its position. Its image of marginal cases is, in our judgment, a helpful one; and it had the advantage of having looked at each of the individual complaints against the standard required, as if it was an individual complaint under the statute.

[60]For those reasons, therefore, we reject the arguments put by Miss Mallick. We are grateful to both her and to Mr Nicholls for the attention to detail which they have given in this case. The appeal is dismissed.

[61]Directions: The Applicant to apply forthwith for a hearing of the remedies. 1 day. Before the same Tribunal. Schedule of loss and any evidence relevant to the remedy hearing to be served on the Respondent 14 days from today. Counter-schedule and evidence in reply 14 days later. Further directions as necessary from the Employment Tribunal.