MRS S A MCLACHLAN v THE CHIEF CONSTABLE OF THE CAMBRIDGESHIRE [2004] UKEAT 0947_03_0408

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0947_03_0408Case No Appeal No. UKEAT/0947/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S A MCLACHLANAPPELLANTTHE CHIEF CONSTABLE OF THE CAMBRIDGESHIRERESPONDENT
Before
His Honour Judge J McMullenDate 4 August 2004
[1]APPEARANCES For the Appellant MR P EDWARDS Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent MR A WATERS Messrs Weightman Vizards India Buildings Water Street Liverpool L2 OGA SUMMARY(1) ET's error of fact, conceded by Respondent, amounted to an error of law, Noorani and Vento applied.(2) Applicant's allegation of apparent bias upheld on EAT's finding of fact. Remit to President of ET's to determine a different Region for rehearing.(3) Strong recommendation for conciliation and/or conciliation of this 8 year old case. HIS HONOUR JUDGE McMULLEN QC On 11 February 2004 a differently constituted Appeal Tribunal consisting of myself, Ms Bilgan and Mr Motture allowed the Applicant's appeal to be go to a full hearing and for further directions to be made. What we said at the time was as follows: 1. This case is about direct and indirect sex discrimination in the dismissal of a police officer and an allegation of bias made against a Tribunal Regional Chairman. This short judgement represents the views of all three members who pre-read most of the papers but introduced to us today was a significant addition. We refer to the parties as Applicant and Respondent. Introduction 2. It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Leicester, Chairman, Mr J K Macmillan registered with Extended Reasons on 14 August 2003. The Applicant represented herself. The Respondent was represented by Counsel. 3. The Applicant claimed sex discrimination. The Respondent denied the claim. The essential issue as defined for the Employment Tribunal on remission by the Employment Appeal Tribunal was to decide on one claim of direct sex discrimination. It was able to be so clinical in this approach because the case had a long procedural history. 4. The Applicant was engaged by the Respondent as a police officer from 18 September 1990 until she was required to resign, the equivalent of dismissal, on 18 November 1997. She complained of unfair dismissal in an Originating Application presented on 18 March 1999. A police officer may not claim an unfair dismissal. She claimed sex discrimination on 26 April 1999. That amendment was refused. An interim appeal was allowed by Nelson J and Members. Further directions were given by Lindsay P in Chambers. After a nine-day hearing registered with Extended Reasons on 16 April 2002 an Employment Tribunal, Mr Goodchild, Chairman found direct sex discrimination. The Applicant was subsequently awarded £50,000 at a Remedies Hearing, The Respondent appealed. Rimer J and Members on 14 February 2003 set aside the decision and remitted a single issue of sex discrimination as contained both within the transcript of its judgement and the Order issued. It was heard on remission on one day, 4 August 2003 no doubt taking Rimer J's point that a nine-day hearing may not be necessary. 5. The case related to an incident in 1997 when the Applicant was disciplined for refusing to obey an order to work beyond 6 pm at the end of her shift in 1996. The background to this incident goes back to 1995. Thus it was between 6 and 8 years before a hearing of this matter. The Employment Tribunal decided that the Respondent did not unlawfully discriminate against her. 6. The Applicant appeals against that decision on 3 distant grounds. These are thata. the Chairman was biased;b. the Applicant had a finding made against her on an essential issue which affected both the conduct of the hearing and her credibility which is wrong as a matter of fact; andc. the Tribunal was wrong to exclude consideration of her claim of indirect discrimination. 7. It is further contended that no sufficient findings are made of direct discrimination relating to the Applicant's primary allegations that a. the reason for her 'dismissal' was that the Respondent was not prepared to put up with the arrangements the Applicant made for shift working; and b. because the comparators with whom the Applicant was comparing herself, all men, did not have the same relevant circumstances namely that the Applicant was on restricted duties by reason of having undergone a second caesarean section. Naturally that would not apply to a man. 8. Directions in this case were given in Chambers by His Honour Judge Richardson. Because of the allegations of bias, an affidavit was required of the Applicant which she has produced. The affidavit and exhibits run for 35 pages. They were shown to the Chairman and to the lay members of whom one responded. The Applicant has further sworn an affidavit recently which the Chairman and members have not seen. The Respondent pursuant to Judge Richardson's direction was invited to make written submissions in opposition for this Preliminary Hearing. He has been silent. 9. The Applicant's submissions relate to a firm finding by the Tribunal that the Applicant, during the Disciplinary Hearing before the Chief Constable Mr Gunn which led to her dismissal, had failed to make clear either as a substantive defence or in mitigation that she was seeking to leave her shift on time because of having to look after her child. The Tribunal decided as follows – See Paragraph 8(e): "On more than one occasion during the hearing today Mrs McLachlan has said that this case is all about childcare responsibility. But that is certainly not how it was run before Mr Gunn because not only - as emerges clearly from his judgment - was there no suggestion that she was pressurised into making the choices that she did because of the need to go home to look after her children, the point is not even raised in mitigation. The question of her being a mother is raised, but only in the context of giving her additional experience and qualities which she could bring to the role of police constable." 10. This finding was the subject of the Applicant's affidavit. She says she did cite her childcare problem. The response of the Chairman is that this is untrue. We have today been shown a transcript of the Disciplinary Hearing conducted by the Chief Constable, taken in accordance with PACE 1984. This was in evidence before the Employment Tribunal. The Applicant complains that she was not allowed to refer to all of it. That of course is true. The Tribunal would only be concerned with relevant passages. But it is quite clear to us from at least 7 references that the Applicant did indeed mention her childcare responsibilities on the day in question as being the reason why she wanted to leave at the scheduled end of her shift. See for example pages 4 and 150 of our bundle, and pages 6, 143, 176-9, 190 and 192 of the transcript. It is sufficient for our purposes to indicate that since this document was before the Employment Tribunal it is strongly arguable that the Tribunal erred when it decided that the Applicant had not mentioned her childcare responsibilities during the Chief Constable's hearing. Further, there are traces of this evidence, apparently unchallenged, in the first Employment Tribunal Decision. The EAT judgment overturning it did not disturb this evidence. 11. It is also strongly arguable that that affected the credibility of the Applicant before the Employment Tribunal, coming as it would appear as an afterthought, unless it was put squarely before the Chief Constable. It also follows that that is an allegation relating to gender, coupled with the Applicant's claim about her performing restricted duties on the grounds of her recent caesarean section. This matter therefore will be sent to a Full Hearing.[2]There then followed a discussion of whether or the Applicant was entitled to bring forward a claim of indirect discrimination and we decided she should not.[3]The next issue was in relation to the allegation of bias as to which we said:
"15. We then turn to the allegation of bias. There is a straightforward conflict put in terms of where the truth lies between what the Applicant says and what the Chairman and the lay member Ms Deane say. The bias allegation directly affects the Employment Tribunal's treatment of the allegation about the substance of the disciplinary hearing. There is a procedure, under Facey v Midas Retail Security Ltd [2001] ICR 287 EAT, for this matter to be examined and we will make the following proposal. The Respondent has not made written submissions. He will now be required to make Respondent's Answer. The passages referred to in the transcript of the hearing he conducted will be drawn to his attention and he will be invited to make a specific response. The Respondent will also be invited to respond to the Applicant's two affidavits and the Chairman's and Ms Deane's comments. 16. The matter can then be put back in front of me to give directions on the further conduct of the hearing. These might include further reference to the Chairman for comment on the Applicant's second affidavit which exhibits part of the transcript, and facilities for a cross-examination of the non-judicial actors. as we see it at the moment Mrs McLachlan and the Chief Constable and/or his Counsel or other representative to find out what happened on the day of the Employment Tribunal hearing. 17. It may be that once the Respondent sees the way in which we have treated this case and has his attention drawn again to the material which we have seen, and which we regard as significant, a more practical solution may reveal itself. At the Full Hearing, if the Applicant succeeds on either the direct discrimination point or the bias point the only remedy sought is remission to a freshly constituted Tribunal. She does not seek a ruling in her favour on the discrimination point."
[4]Thus it will be seen that there are two issues for full hearing of this case. The first is whether or not an error of law was committed by the Employment Tribunal in its treatment of the Applicant's submission that, at the hearing by the Respondent, she had contended that she had reasons associated with childcare which accounted at least in part for her decision on 2 March 1996, the date on which the relevant action occurred. The second was whether the Chairman or the Tribunal gave the appearance of bias.[5]The proceedings have moved on, for further directions were given in relation to the Chairman's comments and on 8 March 2004 further comments were made by the Chairman, in which it is right to say, following a meeting with his members, a different approach was taken by him to the allegations made by the Applicant. It is common ground that in this letter the Chairman went beyond the direction of the EAT. Now that this appeal has been concluded, it can be understood that what in impressed the EAT on the Preliminary Hearing, and no doubt Judge Richardson on his sift of the Notice of Appeal, was that there was force, from the documentary material, in the Applicant's contention that she had raised childcare. It seemed a simple issue to resolve, as is indicated in the concluding paragraphs of our first judgment.[6]However, the first response of the Respondent was, to put it mildly unimpressive. We are told that that was the response of a solicitor who had not read the papers but had only read our Order. It was not accepted that at the Applicant's disciplinary interview she mentioned childcare seven times. Further enquiries were being made. Three weeks later, the Respondent's present position was adopted which is as follows:
"The Respondent accepts that references to the Appellant's childcare were made on a number of occasions at the disciplinary hearing as is noted by His Honour Judge McMullen QC at page 4d of his sealed judgement. However, a full and careful reading of the evidence of the disciplinary hearing reveals that as both the Employment Tribunal and the former Chief Constable noted the Appellant was not running childcare as a defence or explanation for her actions. The Chief Constable … disbelieved the Applicant's claim that the time she was due to book off was not a contributory cause towards her failure to deal with the abduction. It is therefore not accepted by the Respondent that the Employment Tribunal made a finding which was wrong as a matter of fact."
The Legislation[7]The relevant provisions of the legislation are set out by the Employment Tribunal in its Decision:
"9. We now turn to the law.

(a) of the Sex Discrimination Act provides: "

In any circumstances relevant for the purposes of any provision of this Act other than a provision to which sub-section (2) applies, a person discriminates against a woman if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man." The burden of proof historically has always been upon an applicant, but the Tribunal was enjoined, once a prim facie case of less favourable treatment had been established, to ask the respondent to explain that treatment. If the explanation proffered was inadequate, untrue or in some other way unsatisfactory, it was open to the Tribunal to draw inferences adverse to the respondents and to find the discrimination proved. That has now been changed by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 which have inserted into the Sex Discrimination Act a new section 63A. This provides:
"(1) This section applies to any complaint presented … to an employment tribunal. (2) Where on the hearing of the complaint the complainant proves facts from which the tribunal could apart from this section conclude in the absence of an adequate explanation that the respondent (a) has committed an act of discrimination against the complainant, which is unlawful by virtue of Part II; (b … the tribunal shall uphold the complaint unless the respondent proves that he did not commit or as the case may be, is not to be treated as having committed that act"
. Although the matters complained of took place before the amendment to the Act, there are no transitional provisions and we must deal with Mrs McLachlan's complaint on that basis."[8]It is common ground that it is a correct direction. To this can be added that imposing a detriment is unlawful under Section 6 and it is common ground that the requirement for the Applicant to resign office as a constable would be capable of falling within that description. The Tribunal also addressed itself to one authority, Zafar v Glasgow City Council [1998] ICR 120 in terms which again are accepted to be correct, that is, it is no guidance on the question of discrimination for a Tribunal to conclude that a dismissal was unfair. However, the Tribunal went on to say this:
"All tribunals are familiar with cases in which white male employers have behaved disgracefully towards white male employees, against whom they cannot of course as a matter of law discriminate."
Although a subsidiary matter, that was contended by Mr Edwards, again appearing for the Applicant, to be an error of law and there was no response by Mr Walters to this submission. That passage is an egregious error of law in itself, for it is patently obvious that tribunals are aware that a white male employer can discriminate against a white male employee on the grounds of race. The Applicant's case[9]The Applicant submitted that the Employment Tribunal had erred in law in that its finding of fact, as we have recorded it above in our first judgment, was wrong. The Tribunal could not have made this finding had it accepted the Applicant's invitation to look at the transcript of the disciplinary hearing and the passages she had cited. She was, it is contended, effectively prevented from so doing and thus there are only two submissions which can be made. One is that the Tribunal was monumentally incompetent, as Mr Edwards put it, in missing this point when it read the transcript. Or it did indeed prevent the Applicant raising those matters and so did not see those matters. It is contended that this is an error of law. On the apparent bias issue, the Employment Appeal Tribunal must act as a Tribunal of fact. A reasonable observer of these proceedings with an understanding of the matters would not have regarded the Employment Tribunal as acting fairly as between the parties.[10]The issue of credibility was straightforwardly before the Employment Tribunal. It is true that the essential examination of credibility, Mr Edwards says, is of Mr Gunn's but the Applicant's credit is relevant for why else did the Employment Tribunal cite it three times? It is now accepted by the Respondent that those references are wrong as a matter of fact. It was further contended that there is no saving of this error by reference to what is described subsequently as a full and proper reading of the transcript. The Employment Tribunal has no power, for it was not directed to do so, to now go through a full and proper reading and confirm its earlier finding. It is contended that the proper test is whether a reasonable Tribunal looking at this transcript would have come to the same conclusion. The Applicant was raising as one of her defences that she had to leave at 18.00 pm on 2 March 1996. That is not leaving early for her leaving time was 18.00, and she had in the past secured an undertaking that she could leave at the end of her appointed shift and indeed the Chairman is again in error in drawing attention to the fact that she left early.[11]Attention was drawn to a witness statement from Mr Dougal. This was not in the papers before the Employment Tribunal. It is in ours. Counsel agree that the Applicant had it in her papers before the first Tribunal, the Goodchild Tribunal, but the point is now moot for the relevant part of Mr Dougal's statement is contained in the transcript of the disciplinary hearing. Mr Dougal gave evidence by refreshing his recollection from his witness statement. The picture we have, since these proceedings are conducted according to PACE 1984, and with other safeguards, is that Mr Dougall did just what officers do in criminal proceedings which is to seek permission to refresh their recollection but their statement or note is not shown to the jury.[12]It was further contended that the Tribunal had accepted the misleading impression given by Mr Gunn that that the Applicant had not raised the issue of childcare except in mitigation, and even then, only in an abstruse way. It was contended that credibility is crucial in this case both of Mr Gunn and of Ms McLachlan. The treatment by Mr Gunn of this as a very serious matter was different from the original approach taken, to which we will return in a few moments. But the Applicant was not suspended during the nineteen months after the accident and before Mr Gunn's hearing. There appeared to be no performance issues at her appraisals and the Tribunal found that she had an excellent record. Those matters were relevant, of course, to an unfair dismissal, and are also relevant in the drawing of inferences in a sex discrimination case, it is contended. The Respondent's case[13]On behalf of the Respondent, it is accepted, that the Tribunal was wrong in fact but a proper reading of the transcript of the hearing before the Respondent indicated that had the Employment Tribunal had its attention drawn to all these matters, it would have come to the same correct conclusion. The Tribunal, notwithstanding this factual error did apply the law correctly. The references we have given above apply and see also paragraphs 6, 8(h) and 14 of the Reasons. It would have made no difference, because the correct comparator was a male officer with childcare responsibilities as to which there is no evidence that Mr Gunn would have treated him differently. It was contended that this case stood or fell on what the Tribunal made of Mr Gunn and not of the Applicant.[14]As to apparent bias, it was contended that the criticisms made by the Applicant were all neutral. It will be recalled that the Applicant's complaints of bias were summarised as Mr Waters in his skeleton argument as follows:
"10 The Appellant alleges in her affidavit (pages 115-124) that there was bias against her on the part of the Chairman. In particular she alleges that he belittled her (paragraph 9), kept interrupting everything she said (paragraph 13) and had a derogatory attitude (paragraph 15). She claims that as result of his behaviour she was not able to properly present her case or refer to relevant documentation."
[15]As to why the Applicant may not have introduced the passage which she had carefully prepared and highlighted, that was not because the Applicant was prevented from so doing. The issue related to what is described as the exclusion of irrelevant matters including, for example, matters which might be described as relating to health and safety. The Legal Principles[16]The legal principles to be applied in this case appear to us be as follows:(1) A misunderstanding of facts or of the evidence can be an error of law – see Noorani [1999] IRLR 184 CA; Vento [2003] ICR 38 CA.(2) Sex discrimination is a subject which is highly fact sensitive depending as it does in many cases on the drawing of inferences from primary facts by an Employment Tribunal upon what are essentially hypothetical questions – see Shamoon [2003] ICR 337 HL(3) Where an allegation of apparent bias arises, it is appropriate for the Appeal Tribunal to carry out the Practice Direction and the procedure in Facey v Midas Retail Security [2000] IRLR 812. Alternatively, bespoke directions can be given in any particular case.(4) It is for the EAT to decide as a matter of fact on the allegations relating to what occurred at the Employment Tribunal Stansbury v Datapulse PLC & Another [2003] EWCA Civ 1951 .(5) Where the issue is one of conflicting evidence the guidance in Shodeke v Hill , UKEAT/0394/00 of Rimer J and Members is apposite at paragraph 14 which says as follows: "…Usually, of course, in the absence of cross-examination (and leaving aside those rare cases in which one side's account is so manifestly incredible that it can safely be disregarded), a court or tribunal faced with conflicting factual accounts on paper is not in any position to make findings as to which of the accounts is to be preferred."(6) The test for apparent bias is that set out in Porter v Magill [2002] 2 AC 357 per Lord Hope at paragraph 102. That is whether a reasonably informed person observing these proceedings would consider that there was a real possibility that the Tribunal would treat one side with disfavour or the other with favour. Conclusions[17]We reject the arguments of the Respondent and have decided that the appeal should be allowed. We uphold the submissions of the Applicant. Misunderstanding the evidence[18]First, an error related to the evidence which was placed before Mr Gunn and then the Employment Tribunal. We hold that the evidence was that the Applicant had raised seven times during her disciplinary hearing before the Respondent, the question of childcare. Further, it had always been her case that that was an important issue for her, for that is what she told Mr Dougal very shortly after the relevant events occurred.[19]It is a misunderstanding of the evidence. The evidence was plainly there and a finding directly contrary to that evidence was made by the Employment Tribunal. This is not simply an error made as to the weight to be attached to particular evidence, since that would be a question of fact within the domain of the Employment Tribunal and not susceptible to appeal. The error of fact in our judgment is fundamental to the issues before the Employment Tribunal. The Employment Tribunal has not correctly done its duty to find the facts according to the evidence. It raises a question of law for us to determine. Given that position, the next question is: Is the decision, notwithstanding that error, unarguably right? We cannot make that finding. First, the error affects the legal issue of differential treatment. What would this Chief Constable do in the hypothetical situation of his hearing a man in disciplinary hearings is very much tied up with what he did to this female officer in the light of what she told him.[20]Secondly, it was relevant. It was after all at the heart of this case. If affects the legal question which we have posed above. Thirdly, it was potentially important for as Mr Dougal told the Respondent at the hearing before him:
"Before I actually spoke to officer MCLACHLAN though I was aware that the incident had been resolved and it was not of such a nature at that stage."
That refers to his impression that the matter had been closed. Although the full statement of Mr Dougal was not, as we understand it, in the hands of the Respondent it is clear from that passage that Mr Dougal was indicating his view, as the Applicant's superior, that the matter was not of such a nature as would cause such serious disciplinary proceedings as ultimately ensued nineteen months later.[21]Fourthly, this issue reflected on the credit of both the Applicant and the Respondent. The Applicant said she raised childcare. The Respondent denied it. As now appears the Applicant was telling the truth and the Respondent had not correctly identified to the Tribunal that that was the Applicant's evidence. The Tribunal accepted the Respondent's evidence. It regarded him as an impressive witness. Thus, we hold that credit of both the Applicant and the Respondent was in issue before the Tribunal and this error in misapprehending the evidence affected the Tribunal's approach to credibility.[22]For those reasons, therefore, this decision will be set aside. Apparent bias[23]We now turn to the issue of apparent bias. Again, we have decided that the Applicant's case is to be preferred. She alleges that she could not put her case because she was prevented by the Chairman from so doing. The Chairman accepts that he prevented her from putting certain matters. That, of course, is neutral. If the matters were irrelevant or time wasting it would be well within his responsibilities of case management to exclude them.[24]However, the transcript of the disciplinary hearing supports the Applicant's case and we are told she marked it up with the relevant passages. She said she was not allowed to present the case and did not continue to assert this right once prevented. It therefore appears to us that she was prevented from putting forward what we have now held to be relevant material and she was correct to seek to do that.[25]As to what is said about the Chairman intervening during her and her husband's conduct of the case, that too is accepted by the Chairman. That too is neutral. It could be intervention on the basis that the point had already been put. It could be part of the normal duties of case management. As to being derogatory and belittling that is denied by the Chairman. On the state of the evidence we cannot decide in the Applicant's favour on all these points. However, what is clear is that the Chairman does not, up to and including his comments in response to the Order of the EAT, consider that the Applicant was telling the truth. It is accepted now by the Respondent that she was. So there is no support for the Chairman's position on the central factual issue of childcare, and her credibility when she says that she raised that point.[26]We find that the Applicant is telling the truth as to the interventions and as to the prevention of evidence. Since these are not disputed by the Chairman, only the context is challenged. It is clear that the Applicant irritated the Chairman, and Mrs Deane reflects this, in seeking to bring in unfair dismissal matters. Or, at least what were thought by the Tribunal to be such. Mrs Deane says this:
"The chairman explained to the applicant in careful and precise terms, the very limited nature of the reference back from EAT. In addition, he explained how we proposed to deal with the single issue before us. It is my belief that this was well understood by the applicant. However during the hearing she constantly wanted us to consider issues or read documents which principally related to the fairness of the dismissal or other matters outside our remit. I certainly do not believe that she was disadvantaged by the way the hearing was conducted."
[27]But it will be recalled, as we have indicated above, that Mr Dougal thought the matter of the Applicant's conduct on 6 March 1996 had been solved and seems to have taken a more lenient view of it. The Applicant had an excellent record. No action was taken against her for nineteen months during which she continued to serve as a Constable. These are, apparently, unfair dismissal points but we hold that they go to any attack on Mr Gunn's credibility on the essential issue of sex discrimination. The Applicant was seeking to show was that it should be inferred from Mr Gunn's conduct and language that he would have treated a male officer in the same circumstances more favourably than he treated the Applicant. And so the question does arise, and cover some of the same territory as unfair dismissal. To exclude these matters as being unfair dismissal points does an injustice to the judgment of the House of Lords in Zafar v Glasgow City Council (above). True it is that unreasonable conduct does not shed light on the central question of sex discrimination, but, when what is examined is the reason for Mr Gunn's conduct, matters which we have cited above may well be relevant and it would be wrong to have excluded the Applicant from rehearsing such matters in open Tribunal.[28]As to the other two points – that the Chairman belittled her or was _erogatory – she has not proved these to our satisfaction. We bear in mind the difficulties that we are facing as a fact finding body in determining matters of credit on papers alone. We have had no difficulty in making our decision that we preferred the Applicant's case and she has proved on a balance of probability that matters occurred in the way she says for we have been able to look at the transcript itself and we have been able to look at the reasons of the Tribunal and the subsequent comments together with the concessions made in this case. What we cannot do is to give such a judgment in respect of what are essentially matters of impression. What may be regarded by an experienced advocate as robust case management might be regarded as belittling by a person who has not appeared in Employment Tribunals. Similarly, what might appear to be derogatory to such a person might also be firm Tribunal conduct to another. As Rimer J made clear in Shodeke . In the absence of live evidence on this matter we would not be able to resolve it and so we hold that she has not proved either of those points to our satisfaction. Using the language of Rimer J, this is a rare case in which the Respondent's side is wholly incredible and we uphold the Applicant's except for the two last points. For this reason, too, the decision of the Tribunal will be set aside. Disposal[29]Having canvassed with Counsel, both of whose clients are in Court today, the resolution of this matter, we will remit this case to be heard by a differently constituted Tribunal. Justice requires that this be dealt with outside the Nottingham region whose Regional Chairman has been involved in these proceedings. So we will remit the case to the President of Employment Tribunals in England and Wales for him to determine where the case should be heard. The way forward[30]Eight and a half years after the offence when Mrs McLachlan disobeyed an order we are ordering remission to a differently constituted Tribunal to hear this all over again. Mr Gunn is no longer the Chief Constable. Mrs McLachlan no longer works there. This case cries out for a sensible intervention. We have a duty to consider conciliation under EAT Rule 36 and now this case is back in the Employment Tribunal, section 18 of the Employment Tribunals Act 1996 applies, placing a duty on ACAS. We would invite the parties earnestly to consider going to ACAS to try and conciliate a solution without further litigation.[31]Alternatively, mediation is very much in favour in the Civil Courts, and we in the EAT are interested wherever we can in trying to promote an agreed solution. This case is one in which mediation ought to stand a good chance of success. Mediation generally costs money. Money which has been expended on behalf of the Cambridge Constabulary in this case is no doubt large and will get larger. We would like the parties to consider whether it really is in their interests to go to another Employment Tribunal and fight these issues out, or whether, with minds properly focussed on an equitable solution to this matter in which it can be said that neither party has won or lost hands down, is attractive. That is the view of all three of us who have read all of the legal proceedings at the Employment Tribunals and the EAT of which there have been three of each.