LONDON BOROUGH OF HACKNEY & ORS v MRS S SAGNIA [2005] UKEAT 0600_03_0610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0600_03_0610Case No Appeal No. UKEAT/0600/03/DM & UKEAT/0135/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF HACKNEY & ORSAPPELLANTMRS S SAGNIARESPONDENT
Before
Mr Justice Rimer Mr D Norman Professor P D WickensDate 6 October 2005
[1]APPEARANCES For the Appellant MR SIMON CHEVES (of Counsel) Instructed by: Hackney Legal Services Town Hall Mare Street Hackney London E8 1EA For the Respondent MR JOHN HORAN (of Counsel) Instructed by: Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 BHF. SUMMARY Race Discrimination; Victimisation Whether the employment tribunal's findings of race discrimination and victimisation were tainted by bias, perversity, irrationality or other errors of law. THE HONOURABLE MR JUSTICE RIMER Two appeals are before us. They are against decisions on liability and remedy of an employment tribunal sitting at London Central and chaired by the late Mr. P.R.K.Menon. The other tribunal members were Mr D.L.Kurukulaaratchy and Ms P. Lethbridge-Carr. The liability hearing occupied nine days in May and October 2002 and February 2003, with the tribunal's extended reasons being sent to the parties on 6 June 2003. The remedy hearing took place on 23 October 2003, with the tribunal's extended reasons being sent to the parties on 18 December 2003. The disposal of the appeals has unfortunately been protracted. They were originally set down for a five-day hearing commencing on 22 November 2004. The parties later decided that the appeals could be disposed of in two days, even though seven witnesses were to be cross-examined. That revised estimate proved to be unrealistically optimistic and at the conclusion of the second day a further full day was required. The earliest day that could be fixed was 25 April 2005, following which we reserved judgment. We regret that we were not able to produce our judgment earlier.[2]The applicant was Mrs Saaydah Sagnia. The three respondents were(i) London Borough of Hackney, her former employer ("Hackney"),(ii) Ms Elaine Peace, and(iii) Ms Mary Richardson, both Hackney employees. Mrs Sagnia's claim was for compensation for alleged direct race discrimination and victimisation (she withdrew claims for unlawful deduction of wages and breach of contract). The outcome of the liability hearing was that the tribunal held that the respondents had discriminated against her and victimised her contrary to the Race Relations Act 1976 ("the RRA"). Hackney had always accepted vicarious responsibility for the acts of the second and third respondents and the outcome of the remedy hearing was that the tribunal ordered Hackney to pay Mrs Sagnia compensation of 47,271.70. That was made up of: (i) £15,000 for injury to feelings, (ii) £5,000 aggravated damages, (iii) £5,000 for psychiatric injury,(iv) £17,130 for loss of earnings, and(v) £5,141.70 interest. The tribunal also ordered Hackney to pay costs of £10,000 to Mrs Sagnia.[3]By a notice of appeal dated 17 July 2003 the respondents appealed against the liability decision. They assert that the employment tribunal was biased, had reached a perverse decision and had otherwise erred in law. By a notice of appeal dated January 2004 they appealed against three elements of the remedy decision and against the award of costs. Before coming to the appeals, we must summarise the proceedings before, and the findings and conclusions of, the employment tribunal. The proceedings before the employment tribunal[4]Mrs Sagnia was employed by Hackney from 2 October 2000 until 25 July 2001. She was the Group Manager, Children in the Community ("CIC"), in the Children and Families Services of Hackney's Social Services Directorate. She is a black African. Ms Peace (the second respondent) was her direct line manager. She was the Head of Hackney's Community and Social Work Section, of which the CIC was part. Ms Peace is white. Ms Peace's own line manager was Ms Josephine Kwhali, the Head of Children and Families Services. Ms Kwahli is a black African. Ms Richardson (the third respondent) is Hackney's Director of Social Services and was Ms Kwhali's line manager. She is white.[5]Mrs Sagnia was born in October 1955 and is now 49. On 31 August 2000, she applied to Hackney for the post of Group Manager in its Social Services Department. Her application form recorded her considerable experience as an employee of various London authorities since the early 1970s, including spells of employment with Hackney between 1983 and 1988, latterly as a team manager in child care and protection work. The form also stated that:(i) from September 1991, she had been employed successively as District Manager, Service Manager and Commissioning Manager by the London Borough of Haringey ("Haringey"); and(ii) that from November 1997 to May 2000 she had been employed successively as Family Support Service Manager, Resource Manager and Child Care Manager by the London Borough of Greenwich ("Greenwich"). It named two referees: Mr Andrew O'Sullivan, Head of Children and Families Assessment of Greenwich Social Services and Ms Carol Wilson of Haringey. Mrs Sagnia also stated in her application form that she knew Ms Kwahli, who had been her line manager at Greenwich.[6]On 21 June 2000, Mr O'Sullivan signed a reference giving a comprehensive and positive assessment of Mrs Sagnia's qualities in the field in which she had worked. On 3 August 2000, Ms Kwahli wrote a similarly comprehensive and positive reference for her.[7]Mrs Sagnia was interviewed for the post of Group Manager, CIC, at Hackney on 8 September 2000. The interview was conducted by Ms Kwahli and Ms Peace. She was offered and accepted the post and commenced her employment on 2 October 2000. The statement of its written particulars provided that it was subject to satisfactory completion of a probation service of 26 weeks. Following a three-month extension to her probation, her employment was not confirmed and it terminated on 25 July 2001.[8]Mrs Sagnia presented her application to the employment tribunal on 8 September 2001. She made several allegations of direct race discrimination and victimisation. Four claims failed, namely:(i) that she was placed on probation contrary to Hackney's probation policy,(ii) that Hackney paid her the wrong car allowance and never rectified it, despite requests,(iii) about an e-mail that Mr Nigel Bloch had sent her on 11 January 2001, and(iv) that she was not provided with proper support during her probationary period. There is no appeal in respect of those failed complaints.[9]Turning to the claims which succeeded, paragraphs 1.2 and 1.3 of Mrs Sagnia's originating application, prepared by herself, alleged the following. It is these allegations – plus, importantly, a further allegation in paragraph 10 of her amended application (to which we shall come) - upon which ultimately all her successful complaints were founded. We explain that Hackney has, or formerly had, premises at Clapton Square. "1.2 In November 2000 a management investigation, instigated by [Ms Richardson] took place. She had been informed by a Senior Manager, previously in [Haringey] that I was unsuitable for the post to which I was appointed. During the investigation, conducted by [Ms Kwahli and Ms Peace] I was asked if I was 'a black woman who worked at Clapton Square'. I subsequently learned that this staff member had been accused of a number of improprieties. I firmly believe that this supposed connection with this staff member has coloured my entire experience with Hackney. 1.3 The investigation clearly would not have taken place had I not been a black woman. The authority has never satisfactorily resolved this issue from my perspective. Following the investigation, I believe I was purposely accused of fraud, impersonation, corruption and providing deceptive information to acquire the post. I met [Ms Richardson] in December 2000 and discussed the investigation. The position she adopted further confirmed my view that I was specifically being targeted so that my permanent position could not be confirmed."[10]In their notice of appearance, dated 24 October 2001, the respondents answered these allegations as follows:
"9. On 2 nd November 2000, [Ms Kwahli] and [Ms Peace] met with [Mrs Sagnia]. They explained that [Ms Richardson] had received information about [Mrs Sagnia's] previous employment with [Haringey] and [Hackney]. Ms Kwahli explained that she had been asked to investigate the reference received from [Haringey] and to check on [Mrs Sagnia's] previous employment with Hackney. Ms Kwahli explained that it was her professional duty to respond in order to safeguard Children and Families and avoid any suggestion of wrongdoing hanging over [Mrs Sagnia]. It is denied that during the meeting [Mrs Sagnia] was asked if she was 'a black woman who worked at Clapton Square'. 10. On 4 th December 2000, [Ms Kwahli] wrote to [Mrs Sagnia] confirming their discussions on 2 November and stating that she had investigated the matter and was satisfied with the selection process and no further enquiries were necessary in relation to her previous employment with Hackney. The Respondents are not aware of a meeting between [Mrs Sagnia] and [Ms Richardson] in December 2000. 11. Save that there was an investigation, paragraph 1.3 of the ET1 is denied. The investigation which took place was necessary and proper, given the nature of the concerns raised. An investigation would have been carried out had [Mrs Sagnia] been of a different race or colour. It is denied that the investigation was motivated by [Mrs Sagnia's] race. It is denied that [she] was being targeted so as not to confirm her permanent appointment. It is further denied that following the investigation [she] was accused of the matters set out in paragraph 1.3."
[11]On 4 January 2002, Mrs Sagnia served an amended originating application, drafted by solicitors. It was expressed to be "in substitution of the" original particulars. Paragraphs 9, 10 and 11 repeated the same core allegations in slightly different terms, as follows:
"9. In a supervision meeting on or around 2 November 2000 with [Ms Peace and Ms Kwahli] [Mrs Sagnia] was told by [Ms Peace] that she had been subject to investigation in relation to her previous employment with Haringey in 1996. The investigation was instigated as a result of comments made by an unknown person at a Directors Conference in Edinburgh, to [Ms Richardson]. [Mrs Sagnia] was asked during this meeting if she was 'a black woman at Clapton Square, who was involved in fraud relating to travelling expenses'. At the supervision meeting [Ms Peace] alleged that [Ms Sagnia] left Haringey in unfavourable circumstances. [Mrs Sagnia] was told by [Ms Kwahli] that she could be dismissed if the allegations were proved. [Mrs Sagnia] informed [Ms Peace] and Ms Kwahli that she had never worked in Clapton Square. 10. The protected act upon which [Mrs Sagnia] seeks to rely is the oral complaint of 2 November 2000 made to [Ms Peace] and Ms Kwahli. [Ms Sagnia] stated that she felt she was being treated unfairly as a result of her ethnic origin. 11. Further and/or in the alternative, on 17 November 2000 and in a meeting of 23 November 2000, [Mrs Sagnia] made a further oral complaint, to [Ms Richardson] and Ms Kwahli. [Mrs Sagnia] stated at both meetings that she felt the only reason that she had been subject to the investigation was because she was black."
[12]Ms Sagnia's complaint to the tribunal (at least as perceived by the tribunal: there is a pleading point to which we will come) was that by making what she claimed were unfounded allegations against her in relation to her previous employment at Haringey and Hackney, Hackney (acting by Ms Richardson) had treated her less favourably on the grounds of race contrary to section 4(2) of the RRA. She also complained that the complaints she had made on 2, 17 and 23 November 2000 (as alleged in paragraphs 10 and 11 of her amended application) amounted to protected acts within the meaning of section 2(1)(d) of the RRA and that the respondents had victimised her for making such complaints. The alleged acts of victimisation (ignoring those relating to the failed claims) were pleaded as being the following acts of less favourable treatment:
"28.2 [Ms Richardson] made unfounded allegations against [Mrs Sagnia] in relation to her previous employment with [Haringey]. … 28.4 [Ms Peace] failed to provide [Mrs Sagnia] with details of the allegations made by other members of staff about [her] management style. … 28.5 In March 2001 [Ms Peace] extended [Mrs Sagnia's] probation without justification and/or allowing [her to] make representations. 28.6 In March 2001, [Mrs Sagnia] had still not been informed of the nature of the allegations made against her by the other member [sic] of staff despite having her probation period extended. … 28.9 [Mrs Sagnia] was expected to undertake tasks that other managers were not asked to undertake such as the auditing of files. 28.10 [Ms Peace] dismissed [Mrs Sagnia] without allowing [her] to state her case or make representations. 28.11 [Hackney] failed to provide an impartial representative to hear [Mrs Sagnia's] appeal against dismissal. 28.12 In respect of particulars at paragraph … 28.8 and 28.9 [Mrs Sagnia] refers to Margaret Waring as her named comparator."
[13]The tribunal's extended reasons contain full accounts of the evidence relating to the instigation of the investigation into Mrs Sagnia's employment record. We will summarise them.

(i) Mrs Sagnia's evidence

[14]Mrs Sagnia had a meeting on 2 November 2000 ("the November meeting") with Ms Kwahli and Ms Peace. Ms Kwahli told her that, whilst at a conference in Edinburgh, Ms Richardson had been told by a Senior Manager formerly at Haringey that Mrs Sagnia was unsuitable for the post at Hackney to which she had been appointed. Ms Kwahli also asked Mrs Sagnia "if she was a black woman who worked at Clapton Square." She had been given no forewarning of the allegations against her or any opportunity to have a representative present at the meeting. She was offended by the reference to "a black woman" and with being associated with a black woman at Clapton Square. She had not worked at Clapton Square during her previous employment with Hackney. She regarded the question as racially derogatory and complained about Ms Richardson to Ms Kwhali. Ms Kwhali later concluded that the allegations against Mrs Sagnia were groundless but Mrs Sagnia received no apology.[15]Mrs Sagnia said she discussed the matter with Ms Richardson in December 2000. Ms Richardson defended her actions, was unapologetic and did not acknowledge that the investigation had caused distress. Mrs Sagnia's complaint was that Ms Richardson had picked up a rumour in Scotland about an employee recently employed by Haringey and had ordered an investigation as to whether Mrs Sagnia was a black woman who had previously been employed by Hackney at Clapton Square. Mrs Sagnia complained that Ms Richardson had no reason for instigating the investigation other than that she was a black African. (ii) The appellants' evidence[16]Ms Richardson's evidence was that at a meeting in Edinburgh in October 2000 she was informed by a former work colleague that Mrs Sagnia had left her job in Haringey "under a cloud", the colleague expressing surprise that Hackney had employed her. Ms Richardson asked Ms Kwhali to contact the informant and to make enquiries, including a check on the coherence of Mrs Sagnia's previous employment record, an investigation she denied was motivated by Mrs Sagnia's race. (We record that the appellants claim that the tribunal were in error in finding that Ms Richardson asked Ms Kwhali to contact the informant. They say that the evidence was that Ms Richardson asked Ms Kwhali to check Mrs Sagnia's Haringey reference. Ms Kwhali's evidence was that it was not until Ms Richardson's evidence at the hearing that she learnt who the informant was, although the tribunal did not believe her).[17]In cross-examination, Ms Richardson disclosed that the informant was Ms Carol Wilson, one of the two referees Mrs Sagnia had named on her application form for the Hackney post. Ms Richardson said she had also asked Ms Kwhali to check Mrs Sagnia's previous employment record with Hackney because she had erroneously understood that Mrs Sagnia had said something about Clapton Square in her application form; and Ms Richardson told Ms Kwhali that several Clapton Square staff had been suspended and dismissed. Ms Richardson said she did not instruct Ms Kwhali to ask Mrs Sagnia anything about this: she merely asked her to check her previous employment record with Hackney.[18]Only Ms Peace and Ms Kwhali were at the subsequent (November) meeting with Mrs Sagnia; and Ms Peace had not been present at the prior discussions between Ms Richardson and Ms Kwhali. Ms Peace said that at the November meeting Ms Kwhali did raise the "under a cloud" inquiry with Mrs Sagnia but did not ask her whether "she was a black woman who worked at Clapton Square." She said that Mrs Sagnia did not complain, either then or afterwards, that she was being unfairly treated because of her ethnic origin. In cross-examination, Ms Peace said she was unsure whether any reference had been made to Clapton Square, but was sure that the particular question of which Mrs Sagnia complained was not put to her.[19]Ms Kwhali's evidence was that at the earlier meeting Ms Richardson had told her that she had been informed in Edinburgh that Mrs Sagnia had left her previous employment "under a cloud" and that there were issues about her work and attitude. She told her that she could find no reference in Mrs Sagnia's application form to her previous employment with Haringey (in fact there was such a reference) and that her Haringey reference was brief. She also told her that Mrs Sagnia had previously worked for Hackney, possibly where another worker had been involved in improper behaviour. Ms Kwhali told Mrs Sagnia at the November meeting that, despite her personal distaste, she had to investigate these matters. She denied that she asked her "if she was a black woman who worked at Clapton Square." Ms Kwhali later spoke to Ms Wilson (the assistant director at Haringey, who was also Mrs Sagnia's named referee) and was satisfied that Mrs Sagnia had been appointed to her present job on merit. Ms Kwhali was also satisfied that Mrs Sagnia had not left her previous employment with Hackney under adverse circumstances. In cross-examination, Ms Kwali accepted that at the earlier meeting with her Ms Richardson had referred to the situation in Clapton Square, and had asked her to check where Mrs Sagnia had previously worked with Hackney and, in particular, to check that it was not at Clapton Square: this was because Ms Richardson recalled disciplinary issues with a group of black staff who had worked there. Ms Kwhali said that, in putting those matters to Mrs Sagnia, she had not been entirely happy.[20]Having satisfied herself that Mrs Sagnia had not left Haringey "under a cloud" or been involved in any disciplinary matters at Clapton Square, Ms Kwhali wrote to Mrs Sagnia to that effect on 14 November 2000. She told her that she had been asked to check out her Haringey reference and whether there was anything of relevance on her Hackney file, saying that there had been "a suggestion that you worked at Clapton Square during a period when at least one staff member had come under investigation." Ms Kwhali told her that she and Ms Peace were satisfied that she had been appointed to the Hackney post on merit and that it was clear that she had not worked at Clapton Square. She wrote that she would not be making any further enquiries. The tribunal's findings about the events of October and November 2000[21]The tribunal made forthright findings of fact. In so far as there were disputes on the oral evidence between Mrs Sagnia on the one hand and Ms Richardson, Ms Peace and Ms Kwhali on the other, they preferred Mrs Sagnia's evidence. They found (paragraph 13) the three respondent witnesses to be neither truthful nor credible, saying they "were evasive and contradictory to such an extent that they impeded the Tribunal in its important task of ascertaining the true facts."[22]In paragraph 13.3.3 the tribunal set out their primary findings on these issues. They found that, to the extent that Ms Richardson had given evidence to the effect that no mention of race had been made by her in her initial discussions with Ms Kwhali, she was untruthful: Ms Kwhali (the last of the three to give evidence) had accepted in cross-examination that Ms Richardson had asked her to check that Mrs Sagnia had not previously worked at Clapton Square because there had been disciplinary issues with a group of black staff there. They found that, to the extent that Ms Peace denied that any mention of race had been put to Mrs Sagnia at the November meeting, she too was untruthful: this was because they found that Ms Kwhali had carried out Ms Richardson's instruction by asking Mrs Sagnia at the meeting whether she was a black woman who had previously worked at Clapton Square. They also found that Ms Kwhali was untruthful in her denial that she had put that question. They accepted that Ms Kwhali did so with distaste, and would rather not have put the question in that form to Mrs Sagnia, but they found that she did so because that is what Ms Richardson had asked her to do.[23]The tribunal found that Ms Richardson had made assumptions about Mrs Sagnia amounting to racial stereotyping. Having been told by Ms Wilson in Edinburgh that Mrs Sagnia had left Haringey "under a cloud" and having learnt that she had previously worked for Hackney, Ms Richardson immediately speculated as to whether she had been one of the black women at Clapton Square about whom there had been concerns. The tribunal said there was no obvious reason to link Mrs Sagnia with Clapton Square apart from the fact that she was a black African: her race was the only reason for Ms Richardson to engage in the speculation that she did. She would not have done so if Mrs Sagnia had been white. The tribunal found that Ms Richardson subjected Mrs Sagnia to a detriment on racial grounds, the act of detriment being to ask Ms Kwhali to check whether Mrs Sagnia was a black woman who had previously worked at Clapton Square.[24]The tribunal were critical of Ms Richardson's evidence that the reason she had commissioned the Clapton Square inquiry was because Mrs Sagnia had said something about Clapton Square in her application form. Mrs Sagnia had said nothing of the sort and the tribunal said this evidence was misleading. We infer that their point was that it amounted to a disingenuous attempt by Ms Richardson to give a colour of legitimacy to an investigation prompted only by racial considerations. The tribunal were also critical of Ms Kwhali's statement in her letter of 14 November 2000 that there had been a suggestion that Mrs Sagnia had worked at Clapton Square: there had been no such suggestion and the tribunal found that Ms Kwhali advanced this untruthful explanation so as to protect Ms Richardson from the allegations of race discrimination that would have been made if she had told Mrs Sagnia the truth.[25]The tribunal found that at the November meeting Mrs Sagnia raised a race discrimination complaint against Ms Richardson (as pleaded in paragraph 10 of her amended originating application). It is that complaint upon which Mrs Sagnia relied as the protected act for the purposes of her victimisation claims (section 2(1)(d) of the RRA). The tribunal further found (paragraph 13.3.3(6)) that "[f]or the above reasons" (which they do not identify with precision, but which presumably at least include the wish to protect Ms Richardson) Ms Kwhali did not carry out an investigation into Mrs Sagnia's complaint and Mrs Sagnia was thereby victimised for having raised it.[26]That concluded the tribunal's findings on what we regard as the core issues. A question arose as to whether the tribunal had jurisdiction to consider the act of race discrimination they had found proved against Ms Richardson: it had occurred in October 2000, whereas Mrs Sagnia's tribunal application was not presented until 8 September 2001, well after the primary three-month limitation period prescribed by section 68(1)(a) of the RRA. Section 68(6), however, provides that:
"(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
The tribunal referred to section 68(6), and concluded in paragraph 13.3.3(9) that it was "just and equitable" to consider the complaint. Their reasons were as follows:
"However, in the light of the evasiveness of and the misleading witness statements made by the Respondents and their witnesses, the Applicant has advanced cogent reasons as to why it would be 'just and equitable' under section 68(6) of the 1976 Act for the Tribunal to extend its time limits in order to bring the Applicant's complaints against Ms Richardson within the Tribunal's jurisdiction. Hackney is vicariously liable under section 32 of the 1976 Act for Ms Richardson's act of racial discrimination against the Applicant. Accordingly, it is the unanimous decision of the Tribunal that [Hackney and Ms Richardson] discriminated against the Applicant on racial grounds contrary to sections 1(1)(a), 4(2)(c), 32 and 33 of the 1976 Act."
[27]The tribunal next observed that, as regards Ms Kwhali's proved failure to investigate Mrs Sagnia's race discrimination complaint against Ms Richardson (one for which Hackney was vicariously liable), the section 68 time limits also applied. They held, however, that the failure was a "continuing act" within the meaning of section 68(7)(b) of the RRA, alternatively that for like reasons as those just quoted it was "just and equitable" to assume jurisdiction in respect of Mrs Sagnia's delayed complaint in this respect as well. The tribunal therefore found that, in failing to investigate the complaint, Hackney discriminated against Mrs Sagnia on racial grounds contrary to sections 1(1)(a), 4(2)(c) and 32 of the RRA.[28]Their findings on the further matters to which we now come relate to further allegations of race discrimination advanced by Mrs Sagnia, including allegations of victimisation based on the protected act constituted by her complaint about Ms Richardson's conduct made at the November meeting. Staff complaints against Mrs Sagnia[29]The tribunal dealt with this in paragraph 13.4. Mrs Sagnia was a group manager responsible for two teams based at Morning Lane and Downham Road. In November 2000, some of her team members complained to Ms Kwhali and Ms Peace about her management style. In December 2000, Ms Peace told her that she was the reason why morale was low and why members of staff were thinking of leaving, although the tribunal found that she "was never given an opportunity to deal with the allegations as she was never given full details of those concerns" (paragraph 13.4(2)). On 9 February 2001, an unsigned memo, allegedly from her staff, was sent to Ms Peace, with a copy being provided to Mrs Sagnia. It drew attention to the staff's "ongoing concerns" as regards the attitude and management style of Mrs Sagnia and Ms Colette Elliott (a black African Caribbean and one of Mrs Sagnia's senior team managers). Ms Peace responded to the work teams by saying she would look into the matter after 26 February 2001, following her return from leave.[30]Mrs Sagnia suspected that the memo was the work of just one disgruntled employee, Ms Caroline Lynch, who had previously complained about her. She appears to have been correct about this: Ms Kwhali agreed in evidence that it was Ms Lynch's work (although Mrs Sagnia had never been told that) and the tribunal said there was no evidence that any other team members associated themselves with it. They said that no witnesses were called to substantiate the allegations in the memo. Ms Elliott gave evidence in which she was critical of Mrs Sagnia, but the tribunal found her to be an untruthful witness and rejected her criticisms. Ms Elliott had said that the reason she was included in the memo's criticism was so that it would not be seen as a race issue – an explanation that the tribunal rejected as improbable and unsatisfactory, making the point that, as Mrs Sagnia and Ms Elliott were the only black managers, the race issue assumed even more prominence. The tribunal's conclusion on this part of Mrs Sagnia's complaints was as follows:
"(9) The Tribunal finds that some members of staff were unhappy with the Applicant's management style, although not to the extent claimed by Ms Lynch in the memo and Ms Elliott in her evidence. The staff included some black employees. The whole Department was under Ministerial Directives, and procedures had been tightened. Some of the staff did not take kindly to the tighter controls brought in by the Applicant. Ms Peace and Ms Kwhali did not address the issue of potential race discrimination in the complaint against the two black managers because after the Applicant had made her race discrimination complaint against Ms Richardson at the meeting on 2 November 2000 the Respondents treated her less favourably than would have been the case if she had not made that complaint against Ms Richardson. The Applicant was subjected to a detriment on racial grounds and victimised by Hackney contrary to sections 1(1)(a), 2, 4(2)(c) and 32 of the 1976 Act."
The extension of Ms Sagnia's probationary period[31]The terms of Mrs Sagnia's employment required periodical assessments to be made during the period of probation. None was made, as they should have been, at the end of the first and third months because the time for them coincided with Mrs Sagnia's holiday arrangements in November 2000 and the intervention of the Christmas and New Year holidays. She did, however, have 15 supervision meetings with Ms Peace between 30 October 2000 and 25 June 2001.[32]On 16 February 2001, Ms Peace wrote to Mrs Sagnia to inform her that, as she had earlier advised, she was concerned about Mrs Sagnia's attitude towards her "which [she] perceived as an unwillingness to accept my managerial direction, by approaching my line manager without discussion with me and not responding to my directions." Ms Peace wrote that she did not view Mrs Sagnia's probationary period as progressing satisfactorily and that, if her appointment was to be confirmed, she would "need to achieve a satisfactory performance in all aspects of [her] work." Ms Peace did, however, also acknowledge the many positive aspects of Mrs Sagnia's work and that there was no question about her commitment to achieving a high standard and the hard work she was putting in to maintaining and improving service delivery. She recorded that Mrs Sagnia had stated that she had no intention of undermining Ms Peace or of causing her (Mrs Sagnia's) staff any distress.[33]Ms Peace wrote to Mrs Sagnia again on 23 March 2001, confirming (as earlier discussed) that she had extended the probationary period for three months. Ms Peace again acknowledged the work she had undertaken and her overall commitment. But Ms Peace said she had not consistently demonstrated the level of management effectiveness to be expected of her, the main areas of under performance being work prioritisation and addressing and completing priority tasks, of which she gave examples. She also referred to Mrs Sagnia's staff management skills and, whilst acknowledging that there had been improvements, said that she needed to be clear that that they were fully sustained. She said it was crucial that Mrs Sagnia should meet certain identified targets over the following three months.[34]On 9 April 2001, Mrs Sagnia responded defensively to Ms Peace's letter of 16 February 2001, complaining of a lack of support since arriving at Hackney. She believed she had received unwarranted blame and criticism. She expressed concern about the lack of process and structure around the probationary process and its assessment and the lack of clarity around the issues being assessed. Ms Peace responded on 30 April 2001 with her version of events.[35]Ms Kwhali wrote to Mrs Sagnia on 2 May 2001, saying that although the procedures did not provide for it, she was willing (having had regard to Mrs Sagnia's view that she had not been adequately supported by Ms Peace) to hear an appeal against the decision to extend her probationary period. On 8 May 2001, Ms Kwhali informed Mrs Sagnia that the appeal would be heard on 17 May 2001 and of her right to be represented. She explained that Ms Peace was to present the management case and that Mr Plummer, a human resources officer, would attend.[36]On 16 May 2001, Mrs Sagnia prepared a written statement of her case, which she left in the office of Ms Kwhali's secretary. Unfortunately, Ms Kwhali was not made aware of its existence until after the appeal hearing (at which Mrs Sagnia made no reference to it), but she and Ms Peace had a meeting with Mrs Sagnia on 15 June 2001 to discuss it. In the meantime, on 18 May 2001, Ms Kwhali had written to Mrs Sagnia saying that she had concluded that there were sufficient concerns to justify extending the probationary period: although there were positive aspects to her work, Ms Peace had raised significant issues both in supervision and at discrete meetings concerning Mrs Sagnia's staff management skills and her attitude towards Ms Peace.[37]The tribunal's decision was that Mrs Sagnia's alleged shortcomings were not so great as to justify the extension to her probationary period, for which they gave brief reasons in paragraph 13.5(12)(i). They said the constant theme of the respondents' criticism of Mrs Sagnia was her alleged attitude towards Ms Peace and the concerns about her raised by the staff. They said in paragraph 13.5(12):
"(iii)… Whatever the merits of the criticisms of aspects of the Applicant's work, the Tribunal finds that the criticism of the Applicant's alleged attitude to Ms Peace stems from her managers' displeasure at the Applicant's repeated complaints that she had been discriminated against on racial grounds by Ms Richardson, a complaint which the Applicant first raised with Ms Kwhali and Ms Peace at their meeting on 2 November 2000. From that date the perception of the Applicant's managers – Ms Richardson, Ms Kwhali and Ms Peace – towards the Applicant changed to the Applicant's detriment: she was seen by her managers as having an 'attitude' problem towards her managers because she had raised and persisted in repeatedly raising her complaint of race discrimination against Ms Richardson, a complaint which was never properly investigated by the Respondents …. (iv) The Tribunal finds that an important factor in Ms Peace's decision to extend the Applicant's probation in March 2001 was the fact that the Applicant had alleged that Ms Richardson had discriminated against her on racial grounds and that she continued to pursue that allegation. The Applicant did not undermine Ms Peace's authority by going over her head to Ms Kwhali; it is to be noted that Ms Peace was away for a considerable period of time during the Applicant's probationary period. It is also ironic that whilst the Applicant is accused of undermining Ms Peace, both Ms Peace and Ms Kwhali undermined the Applicant's authority over her staff by having informal discussions with them about the Applicant's management style, in the Applicant's absence."
[38]The tribunal explained that Ms Peace made her decision to extend the probationary period on 23 March 2001, whereas Mrs Sagnia's application to the tribunal was not presented until 8 September 2001, more than three months later (see again section 68(1)(a) of the RRA). They concluded, however, that it was reasonable for Mrs Sagnia to await the outcome of the extended probationary period before presenting her claim to the tribunal in respect of this head of complaint. They therefore held that it was "just and equitable" under section 68(6) for them to consider the complaint even though it was presented late. Having so assumed jurisdiction, they held that Hackney and Ms Peace victimised Mrs Sagnia contrary to sections 2, 4(2)(c), 32 and 33 of the RRA in deciding on about 23 March 2001 so to extend her probationary period. The dismissal and the appeal against it[39]On 27 June 2001, Ms Peace wrote to Mrs Sagnia confirming what she had told her earlier that day, namely that she would not be confirming her appointment. She wrote that the improvements in her performance had not been sufficient or consistently sustained, specifically since February 2001. She gave her four weeks' notice with effect from 28 June 2001, her last day of service being 25 July 2001. She informed her of the right to appeal, any appeal to be addressed to Ms Richardson within ten working days.[40]On 6 July 2001, Mrs Sagnia wrote to Mr Plummer asking for documentation on why she had failed her probation and copies of the probation and appeal procedures, with forms relating to the latter. He replied on 18 July 2001, saying that Ms Richardson would hear the appeal on 1 August 2001. Mrs Sagnia responded on 25 July 2001. She said she had requested an independent investigation into the circumstances and manner in which Ms Peace had dealt with her probation. She said she believed the decision not to confirm her employment had been influenced "by a number of potentially malicious allegations that have been made against me by [Ms Richardson] … You are no doubt aware of the various correspondence surrounding these unfounded allegations." She expressed her belief that her race and sex had contributed to the allegations, hence her previous request for an investigation. She asked why Ms Richardson had been appointed as the hearing officer for the appeal and expressed her objections to it, saying she believed her reasons previously stated were self-explanatory. Mr Plummer replied on 31 July 2001, saying that the issues she raised about "malicious allegations" had already been discussed with her and found to be without substance. He said he did not appoint hearing officers and that it was appropriate for Ms Richardson to hear the appeal: she was the Director of Social Services and had had no management involvement in Mrs Sagnia's probation. Ms Kwhali had heard Mrs Sagnia's appeal against the decision to extend her probation and had also had discussions with her about the allegations she had made and about her performance: this made it appropriate for the appeal to be heard by "a more senior and independent manager." Mrs Sagnia replied on 1 August 2001, saying she would not be attending the appeal hearing because of her concern that Ms Richardson would be the hearing officer. Mr Plummer responded on 6 August 2001, saying that Hackney was not going to negotiate as to who would hear the appeal and that, as Mrs Sagnia had chosen not to attend the appeal, it could not be progressed. Mr Plummer wrote to her further on 17 August 2001, complaining that she had been approaching staff members asking them to make statements on her behalf. The tribunal held this complaint to be unjustified, saying it was perfectly legitimate for Mrs Sagnia to seek to obtain evidence for the tribunal proceedings which (by inference) the tribunal found she had by then decided to institute.[41]The tribunal's decision on these matters was in paragraph 13.7(10). As for the dismissal decision, they found that Ms Peace gave insufficiently specific reasons to Mrs Sagnia for refusing to confirm her employment and dismissing her. They found that Ms Peace had not explained to their satisfaction that the decision was for genuine reasons relating to Mrs Sagnia's job performance. Their conclusion was that:
"(a) … In the absence of any satisfactory explanation by the Respondents, the Tribunal draws the inference that the reason for Ms Peace's decision not to confirm the Applicant's appointment was because the Applicant had alleged and continued to allege that Ms Richardson had discriminated against her on racial grounds. Ms Peace would have confirmed the Applicant's employment had the Applicant not made such an allegation regarding Ms Richardson. There is no actual comparator. The Tribunal finds that in similar circumstances Ms Peace would not have decided to terminate the employment of a probationer Group Manager who had not alleged that Ms Richardson had discriminated against her on racial grounds. Hackney is vicariously liable under section 32 of the 1976 Act for Ms Peace's acts. It is the unanimous decision of the Tribunal that [Hackney and Ms Peace], in deciding not to confirm the Applicant in her post (thereby effectively dismissing the Applicant from her employment), victimised the Applicant contrary to sections 2, 4(2)(c), 32 and 33 of the 1976 Act."
[42]As for the appeal, the tribunal found that its process was flawed. They held that there was no reason why Ms Kwhali could not have heard the appeal "if she had been prepared to keep an open mind." But they also said that the fact was that both Ms Peace and Ms Kwhali were not well-disposed towards Mrs Sagnia because of her repeated complaint against Ms Richardson. They held that it was unsatisfactory and inappropriate for Ms Richardson to hear an appeal including allegations of race discrimination when she was the very person against whom Mrs Sagnia had made allegations of such discrimination: Hackney was large enough to be able to find another senior manager to hear it. They found that Hackney's insistence, through Mr Plummer, that Ms Richardson should hear the appeal was an act of victimisation against Mrs Sagnia. They found that Hackney's failure to investigate the race discrimination complaint contained in Mrs Sagnia's appeal letter of 25 July 2001 was an act of race discrimination.

(a) Alleged bias

[43]This is the first ground of appeal. The applicable principles were not in dispute. The relevant question in considering an assertion of bias is: "… whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." ( Porter v. Magill [2002] 2 AC 359, paragraph 103, per Lord Hope of Craighead)[44]This is not a case in which there is any suggestion that any tribunal member had a personal interest in the outcome of Mrs Sagnia's application. The case is advanced on the basis that the tribunal's behaviour called into question their objectivity in disposing fairly of the application. It is therefore founded on complaints as to the tribunal's conduct of the hearing. In Peter Simper & Co. v. Cooke [1986] IRLR 19, a decision of this tribunal, Peter Gibson J said at paragraph 10:
"We take it to be axiomatic that justice before a Tribunal must not only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a Tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."
[45]A similar test was later indicated by the judgment of the Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Ltd and another [2000] IRLR 96 , at paragraph 25:
"… or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind …."
[46]The appellants' assertion of bias has been directed primarily at the legally qualified chairman, Mr Menon. If the criticism is justified, it is agreed that the taint of bias will not be removed simply because the decision was a unanimous one in which the two lay members joined. This is shown by the Court of Appeal's decision in Lodwick v. LB of Southwark [2004] IRLR 554 , in which Pill LJ said at paragraph 20:
"… Particularly as the legally qualified and presiding member of a tribunal of three, his position was an important one and any apparent bias on his part is not nullified by the presence of two lay members who might outvote him. In present circumstances, if grounds are found to be present which would lead the appropriate observer to conclude that that there was a real possibility that the chairman was biased, it could not properly be held that the requirement of a fair hearing was satisfied by the presence of the lay members."
[47]Finally, it is said, and we accept, that in the case of alleged bias founded on the conduct of the tribunal, the party asserting bias cannot be said to have waived his right to do so by failing to apply, during the case, for a rehearing by a different tribunal. This is supported by the observations of Peter Gibson J in his judgment in the Peter Simper case, supra, at paragraph 21.[48]The bias case is supported by affidavit evidence from six witnesses. Five of them - Ms Richardson, Ms Peace, Ms Kwhali, Ms Elliott and Mr Plummer - gave evidence to the employment tribunal, which found the first four to be untruthful witnesses in important respects and was also critical of Mr Plummer. The sixth witness was Mr Stephen Heath, the appellants' counsel before the tribunal, the appellants being represented before us by Mr Simon Cheves. All six were cross-examined on their affidavits. In addition, their affidavits were submitted to the tribunal members for their comments and we have had the advantage of such comments. The only affidavit evidence in answer was that of Mrs Sagnia, who was also cross-examined. Mr John Horan represented Mrs Sagnia before the employment tribunal and before us, and did not therefore give evidence on the matters the subject of the bias allegations.[49]We say straight away that a significant problem with the bias allegations is the lack of specificity about them. Mr Horan submitted that it was fatal, on the basis (in effect) that evidence which does little more than advance a generalised smear of misconduct is not evidence which can justify a finding of bias. Mr Cheves was sensitive to the problem, saying in his skeleton argument:
"23. Whilst it is acknowledged that this is not a case where the Appellants can point to specific assertions on the part of the tribunal of the type identified in the Peter Simper case evidencing a concluded view, it is submitted that the evidence put forward by the Appellants supports their contention that the ET (in particular the Chairman) failed to treat the parties in an even-handed manner and displayed an adverse, sceptical and at times hostile attitude towards the Appellants, their witnesses and their case in general."
[50]But nor (with certain isolated and unconvincing exceptions) does the evidence even provide specific examples of conduct said to support this submission. This is the more surprising bearing in mind that the evidence shows that the appellants' position is that, from an early stage in the nine-day hearing, they were apparently convinced in their own minds that they were faced with a biased tribunal and raised the point with Mr Heath. That being so, it might have been expected that, from then on, someone on their behalf would have made a comprehensive note of the subsequent proceedings, including in particular notes of any incidents regarded as supporting the claimed impression of bias. Mr Heath's evidence, in line with the guidance in the Peter Simper case, is that it was not appropriate for him to ask for the matter to be re-heard by a different tribunal and so he did not relay his clients' concerns to the tribunal. It is not suggested that he was wrong in adopting that stance. But why, though, did no one make such a note for possible future use?[51]We do not propose to rehearse in close detail all the affidavit evidence in support of the bias allegation but will summarise the general effect of the affidavits. We turn first to Mr Heath's evidence. He said that during his cross-examination of Mrs Sagnia he was struck by the chairman's hands-on, interventionist style. He said the chairman interrupted him on numerous occasions and would take over the line of questioning himself. The interruptions disrupted his approach. He accepted that some chairmen and judges do intervene during the course of a witness's examination, but said that his observation was that the level of intervention in this case was conspicuous. He acknowledged that the chairman also intervened in, and interrupted, Mr Horan's cross-examination of the appellants' witnesses but he said that his impression was that the chairman did not do so to the same extent. He also said that the character of the interventions was different. The chairman's interruptions of Mr Heath's cross-examination of Mrs Sagnia were polite and courteous, giving no impression that he viewed her evidence with mistrust; whereas his interruptions of the appellants' witnesses were "often antagonistic and challenging, and often hostile. His tone and manner suggested that he approached parts of their evidence with a high degree of scepticism." Mr Heath's affidavit did not, however, provide any concrete examples to illustrate these points, apart from two somewhat generalised examples in paragraphs11.1 (relating to the tribunal's refusal to admit a document, for which Mr Heath admits he did not press) and11.2 (a point to the effect that the chairman made a hostile remark to Ms Peace that she was giving contradictory evidence, one said to be founded on the chairman's prior reading of Ms Kwhali's statement, she not having yet given evidence) and a further round of generalised criticisms in paragraph 11.3. He said, however, that by the third day of the hearing, the appellants and their witnesses were complaining about the conduct of the hearing and that "Bias was certainly raised", adding that their expressed concerns were clearly felt and were reasonable.[52]In cross-examination, Mr Heath made clear that the assertion of bias was raised only with him and that he did not relay it to the tribunal. He agreed (as one would expect) that he had taken notes at the hearing, although of course he could not make a note when addressing the tribunal or questioning witnesses. None of his notes were exhibited to his affidavit and he said he had considered it appropriate simply to say in his affidavit what he did say: he said the complaints about the chairman were mainly to do with his tone of voice and his apparent hostility, which was hard to particularise. He had seen his instructing solicitor's notes of the hearing and noted that parts of them showed a disparity of treatment. But he had not suggested that they, or any part of them, should be put in evidence before us and they were not.[53]Mr Heath was referred to Mr Menon's comments on the bias affidavits. Mr Menon said that his interventions were no more than required by the circumstances of the case: the Hackney witnesses were evasive and unhelpful and so he had to ask more questions of them by way of clarification than he had to ask of Mrs Sagnia. Mr Menon had no recollection of Mr Heath's paragraph11.1 incident, but said the admissibility of documents was a matter for the tribunal and as Mr Heath did not press the point, that was the end of it. Nor did he have a recollection of the paragraph11.2 incident, but said that Ms Peace, Ms Kwhali and Ms Richardson did give contradictory evidence. He said that, if he suggested to Ms Peace that she was contradicting herself, he must have had a good reason for doing so. He denied he was hostile to any witness or showed any irritation to any Hackney witness. Mr Heath's response was that, contrary to Mr Menon's assertions, the Hackney witnesses were not unhelpful although he accepted that they may occasionally have needed to be put on track.[54]Ms Richardson's affidavit occupies about a page. She was not present during the entire hearing. She said she was concerned about the conduct of the tribunal from day one, before any Hackney witnesses had given evidence - Mrs Sagnia gave her evidence first – but made no attempt to explain what had caused her such concern. She made the same general points as had Mr Heath in relation to the allegedly uneven treatment of the witnesses and counsel, although there is or may be at least this difference: whereas Mr Heath acknowledged that the chairman interrupted not just himself, but also Mr Horan, Ms Richardson appears to claim that Mr Horan was allowed to present his case without interruption or challenge. Her statement is also conspicuous for its lack of concrete examples. In cross-examination, she explained that this was because she had to produce it within a few hours: she recognised with hindsight that it would have been better for her to have spent more time on it. The only points on which she condescended to specifics were:(i) an assertion that the chairman made a judgment, whilst she was giving evidence, that it was not appropriate for her to question the integrity of Mrs Sagnia's application form, one which Mr Menon rejects, and(ii) an assertion that the chairman had asked slanted questions, of which she gives a brief example without any attempt to set it properly in context. By itself, it tells us little, and Mr Menon rejects the point for which it is cited as "sheer nonsense." He says that, contrary to her assertions, she was not stopped from explaining anything:
"The difficulty was that she was evasive, she did not give straightforward answers to the questions put to her by Mr Horan and the Tribunal and she did not take kindly to being asked questions by the Tribunal."
[55]Ms Peace's witness statement was to the same effect. She too made generalised complaints of uneven treatment of Hackney's witnesses and counsel on the one hand and Mrs Sagnia and her counsel on the other. In cross-examination, she was referred to paragraph 13.3.3(1) of the tribunal's extended reasons (where the tribunal made findings as to the untruthfulness of her and Ms Richardson's evidence, referred to above). Ms Peace does not accept the tribunal's findings of fact but she also criticised that paragraph for containing a finding that she was present at the October 2000 meeting between Ms Richardson and Ms Kwhali. It is agreed that she was not so present, and in our view nor did the tribunal say or suggest otherwise either there or anywhere else. We assume that Ms Peace's contrary impression probably derives from the final two sentences of the paragraph, which read:
"… Ms Kwhali's evidence contradicted the Respondents' case as presented before Ms Kwhali's cross-examination and the previous evidence given by Ms Richardson and the evidence of Ms Peace to the effect that no mention of race had been made in Ms Richardson's discussions with Ms Kwhali nor at the meeting on 2 November 2000. Ms Richardson and Ms Peace were not truthful witnesses in this regard."
[56]At first blush, that can be perhaps be read as suggesting that Ms Peace was present at the prior discussions between Ms Richardson and Ms Kwhali but we consider that involves a misreading. In our view, all that the tribunal were there saying was(i) that Ms Richardson had given untruthful evidence to the effect that no mention of race had been made at her earlier discussions with Ms Kwhali and(ii) that Ms Peace had given untruthful evidence to the effect that no mention of race had been made at the November meeting: the tribunal's finding being that the subject of black women at Clapton Square had been expressly raised at both meetings.[57]Ms Peace was also asked in cross-examination why her affidavit did not condescend to specifics. Her reply was that she had not been in such a position before and did not appreciate the need for it. She did descend to a modest degree of detail in one respect, namely to the effect that the chairman repeatedly questioned her on why Mrs Sagnia was put on probation in the first place, Ms Peace saying that he plainly did not accept the validity of doing so. We derive no help from that. If something is to be made of it, we would at least need to see notes of the relevant exchanges. The chairman's response is that Ms Peace was untruthful and evasive. He accepts he asked questions of her about Mrs Sagnia's probation, which was an issue in the case, but says he made no remarks about the validity of putting her on probation and rejects Ms Peace's assertion that "The Chair constantly implied we [imposed a probationary period] to terminate her employment." We too regard this assertion with scepticism. How did the chairman "constantly imply" this, a choice of words that suggests he never actually said it? Ms Peace makes no effort to explain herself. Mr Menon also makes the valid point that even though the thrust of the appellants' criticism is that he had already made up his mind about the claimed inappropriateness of a probationary period in Mrs Sagnia's case, in fact the tribunal found against Mrs Sagnia on this issue: they had not, therefore, closed their mind to the appellants' case.[58]Ms Kwhali's affidavit makes the same points about the alleged uneven treatment but also provides no specific examples. She was present during Mrs Sagnia's evidence during part of Ms Peace's evidence and during the "summing ups", presumably a reference to counsel's closing submissions. She was not present during Ms Richardson's, Mr Plummer's or Ms Elliott's evidence. She explained in cross-examination that the lack of examples was because her evidence had to be prepared at short notice. She was there during the first day of the hearing but did not at that stage regard the tribunal as biased, although she was concerned at the way they treated Mr Heath. She advances the view that the tribunal, especially the chairman, had formed the view that the Hackney witnesses were untruthful even before they had given evidence. She illustrates that by referring in paragraph 11 to various points allegedly put to her by the chairman during her own evidence. Once again, we do not have a note of the relevant exchanges and find it impossible to regard Ms Kwhali's skeletal assertions as proving the conclusion that she invites. In law, as in most things, context is everything, and Ms Kwhali's evidence does not provide a sufficient context in which to assess her assertions. Mr Menon disagrees with all her criticisms.[59]Mr Plummer's contribution is modest because he was only present at the hearing for his own evidence and a short period before giving it. He says the chairman interrupted his examination on a number of occasions but gives no details. He says the chairman told him his interpretation of a particular letter, one that Mr Plummer agrees that hindsight shows was possible but says the chairman insisted he was not using hindsight. Mr Plummer did not identify the letter, or the relevant question of interpretation, but regarded this exchange as "indicative of the way the hearing was conducted as I came away with a clear impression that an adverse decision had already been reached before I gave my evidence." He does not say what adverse decision had been so made. He refers to the tribunal's criticism in their extended reasons of his letter of 17 August 2001 to Mrs Sagnia. He says he gave no evidence on this issue and was not asked about it.[60]Mr Menon's response is that Mr Plummer was disrespectful to the tribunal and appeared to resent having to answer their questions of him, and that he (Mr Menon) intervened in order to clarify points in his evidence. He said it was wholly proper for him to put to Mr Plummer that the unidentified letter (a reference which at least Mr Menon understood) was capable of bearing a meaning different from that favoured by Mr Plummer. Mr Menon defends the tribunal's comments about Mr Plummer's letter of 17 August 2001, but says that anyway Mr Plummer's criticism of the tribunal's handling of this particular matter does not support the appellants' bias allegations. We are inclined to agree with the last observation, although we also observe that we do not regard it as fair for a tribunal to make critical comments in their extended reasons about someone's conduct without first giving that person a forewarning of the point of potential criticism and an opportunity to meet it.[61]Finally, there is the evidence of Ms Elliott. She was present at the hearing for her own and Ms Richardson's evidence and says she was "partly present" for Ms Peace's evidence, presumably meaning that she was present for part of it. Based on her assessment of the evidence she witnessed, she concluded that bias was a factor in the case. Again, she says there were constant interruptions from the chairman, which she says were primarily to express an opinion rather than to seek clarification. She said that during Ms Richardson's evidence it was clear that the chairman had already made up his mind and prejudged the matter. "He did this by questing [sic] ever [sic] statement in a disbelieving style and manner." She made the same points about her own evidence. Her affidavit was prepared with manifest carelessness, and she cannot have pre-read it with much diligence before signing it: part of paragraph 7 is apparently missing, as are all of paragraphs 8 to 10, omissions that Ms Elliott could not explain and apparently had not previously noticed. Mr Menon disputes the general thrust of her affidavit as totally untrue but adds that, in the absence of specific examples of the type of criticism Ms Elliott was levelling at him, he could not respond to her criticism. He concludes by saying that:
"Ms Elliott's Affidavit contains nothing but personal attacks on my integrity, alleged bias, and rudeness unsupported by any specific factual details; I was never rude nor biased towards any witness. It is highly unlikely that I would have been allowed to remain a full-time Chairman for six months let alone for almost 12 years if my behaviour pattern in Tribunals is as alleged by Ms Elliott and the others."
[62]The two wing members of the tribunal also made statements rejecting the criticisms of the conduct of the hearing. Mrs Sagnia also made an affidavit and was cross-examined. She agreed with the tribunal's comments.[63]We come to our conclusions. Allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency. They are most commonly made by litigants in person, often with little or nothing by way of tangible support for the complaint, which on analysis commonly amounts to no more than the deployment of the fallacious proposition that:(i) I ought to have won;(ii) I lost;(iii) therefore the tribunal was biased. Our experience is that bias allegations based on complaints that the employment tribunal approached the appellant's case with a closed mind, having already pre-determined the matter against the appellant, have a low success rate. This is for the obvious reason that a tribunal cannot form a concluded view on the issues until it has heard all the evidence and the argument and so it will be a rare case in which a tribunal will at any earlier stage make any utterances which either side can rationally regard as the outward expression of some pre-judgment of the case.[64]The basis of the present appeal, in so far as it is based on alleged bias, is that it is said that, right from the start, the employment tribunal had pre-judged the issues adversely to the appellants. It is said that they had in effect made their minds up on them in advance – or at least those on which the appellants lost (they succeeded on some, so that the alleged bias was apparently a qualified one). It is (in effect) said that the tribunal used the giving of oral evidence as an opportunity further to convince themselves of the correctness of the conclusions they had already formed. If such a case can be proved on the facts, bias will be established. But, for reasons given, such a case will be an exceptional one and the proof of it will be required to be sufficiently cogent for the appellate tribunal to be satisfied that it is made out.[65]The determination of an issue such as this by this appeal tribunal is not an easy exercise. The tribunal necessarily has to make a decision on the facts of the matter, and in the present case they are hotly disputed. The appellants' six witnesses, with varying degrees of emphasis, all accuse the chairman of displaying a lack of even-handedness. The chairman and members roundly reject the criticisms and, in so far as he is accused of excessive intervention (the main head of criticism), the chairman has explained why, in the particular circumstances of the case, he regarded it as necessary to intervene to the extent he did. The chairman and members cannot be cross-examined on their statements (see Facey v. Midas Retail Security and Another [2000] IRLR 812, at paragraphs 38 and 39), although obviously we have to take them into account since otherwise there would be little point in obtaining them in the first place.[66]We have come to the conclusion, already foreshadowed, that the appellants have failed to prove the bias they assert. Mr Cheves disclaims any suggestion that there is any evidence that the tribunal expressed an apparently concluded view on any of the issues during the hearing. The case is built solely on the basis of an assertion of a lack of even-handedness of the treatment of both sides, the treatment of the appellants' case being said to have been so hostile as to justify the inference that the tribunal had already made up their minds about it, even though they had not openly declared their views. We readily accept that such a case might be capable of being made. If from the start of the case, a tribunal treats one side's case and witnesses sarcastically, dismissively and aggressively, whilst displaying outward signs of unbroken sweetness and light to the other side's case and witnesses, it may not be difficult to infer that the tribunal had already made its mind up, or at least that it was conducting the hearing so unfairly that justice was neither done nor seen to be done. Like all cases, however, such a case requires to be proved. It is not enough for a collection of dissatisfied witnesses merely to make generalised assertions of such alleged lack of even-handedness. They must be able to point to concrete examples in order to make it good. Ideally, this will require the production of a transcript of the proceedings, from which the appellate tribunal will be able to see the course the hearing took. Unfortunately, however, transcripts of employment tribunal proceedings are a rarity and we have none. Nor do we even have a note of the evidence, let alone of any specific exchanges which support the generalised criticisms made by the appellants. Mr Heath made the point that it was not so much what the chairman said as how he said it. We well understand the theory of that point: what appears on the cold face of a transcript to be a neutral and innocent question may in fact have been posed in such tones as to speak eloquently of what was underlying the tribunal's thinking in asking it. But Mr Heath's point simply underlines the difficulty of the particular case that the appellants have sought to make. To make the case good they needed not just a proper note of the proceedings, but side-notes as to the flavour of any particular exchange. That would of course have been a demanding task: but no attempt appears to have been made to perform it. We not only have no notes referring to particular exchanges in which the chairman's tone is said to have deserved criticism, we do not even have notes of the exchanges themselves.[67]In these circumstances, we have come to the conclusion that Mr Horan is correct in his submission that the appellants have not proved their case that the tribunal was biased. We dismiss this ground of appeal. (b) Alleged illogicality, perversity and errors of law in the tribunal's liability decision[68]Mr Cheves advanced criticisms of several findings and conclusions by the tribunal. We take them in chronological order. (i) The finding that Ms Richardson instructed Ms Kwhali to "check out whether [Mrs Sagnia] was a black woman who had previously worked at Clapton Square"[69]First in time was a submission going to the tribunal's decision that Ms Richardson discriminated against Mrs Sagnia on racial grounds by her racial remarks to Ms Kwhali, by which (so the tribunal found) she asked her to "check out whether the Applicant was a black woman who had previously worked at Clapton Square" (paragraph 13.3.3(2)). Mr Cheves said this was a perverse finding, there having been no evidence justifying it. His criticism focused on the finding that that was the precise nature of Ms Richardson's instruction: there is no challenge to the finding that Ms Richardson instructed Ms Kwhali to find out if Mrs Sagnia was one of the group of black women who had worked at Clapton Square who, or some of whom, had been subject to disciplinary issues..[70]We do not accept that the precise finding so made can have been an accurate finding of Ms Richardson's instruction to Ms Kwhali. There was no evidence supporting it and we regard it as a perverse finding. Mrs Sagnia could give no evidence on the point because she was not present at the meeting between Ms Richardson and Ms Kwhali. Nor, for the same reason, could Ms Peace. Ms Richardson's evidence was apparently to the effect that no mention of race had been made at the meeting, which the tribunal found to be untruthful. What Ms Richardson had said in cross-examination was that she had understood that Mrs Sagnia had said something about Clapton Square in her application form (in fact she had not), she also knew that staff at Clapton Square had been suspended and dismissed and so she asked Ms Kwhali to check Mrs Sagnia's previous employment record with Hackney.[71]The only evidence to the effect that matters of race were mentioned at Ms Richardson's meeting with Ms Kwhali came from Ms Kwhali in cross-examination. The tribunal summarised Ms Kwhali's evidence in paragraph 13.3.2(4), as follows:
"(4) Ms Kwhali said that Ms Richardson had made reference to the situation in Clapton Square and whether the Applicant had worked in Clapton Square. Ms Kwhali said Ms Richardson had asked her to check the Applicant's work history in relation to Haringey, also to establish where the Applicant had previously worked in Hackney and to check that it was not Clapton Square because when she (Ms Richardson) had previously been in Hackney there had been disciplinary issues with a group of black staff who worked at Clapton Square. Ms Kwhali said that she, in putting those matters to the Applicant, had not been entirely happy but she had asked the Applicant if she had previously worked at Hackney because Ms Richardson had asked her to carry out such an investigation. Ms Kwhali said that Ms Richardson wanted her (Ms Kwhali) to satisfy herself that the Applicant had no connection with Clapton Square when she had been previously employed in Hackney because there had been management issues regarding a group of black staff at Clapton Square. …"
[72]That was a summary of the only evidence on the topic that led to the tribunal's finding in question. The tribunal's findings on what Ms Richardson had instructed Ms Kwhali to do are in paragraphs 13.3.3(1), (2) and (3), as follows:
"(1)… Ms Kwhali said that Ms Richardson had asked her to check out the Applicant's previous work history with Hackney and to check out that it was not in Clapton Square because there had been disciplinary issues with a group of black staff who had worked at Clapton Square . Ms Kwhali went on to say in cross-examination that Ms Richardson had wanted her (Ms Kwhali) to satisfy herself that the Applicant had no connection with Clapton Square when she had been previously employed in Hackney because there had been management issues regarding a group of black staff at Clapton Square . Ms Kwhali's evidence contradicted the Respondents' case as presented before Ms Kwhali's cross-examination and the previous evidence given by Ms Richardson and the evidence of Ms Peace to the effect that no mention of race had been made in Ms Richardson's discussions with Ms Kwhali nor at the meeting on 2 November 2000. Ms Richardson and Ms Peace were not truthful witnesses in this regard. (The employment tribunal's emphasis). … (2) … The Tribunal finds that the Applicant was subjected to a detriment on racial grounds by Ms Richardson, the act of detriment being her asking Ms Kwhali to check out whether the Applicant was a black woman who had previously worked at Clapton Square. (3) The Tribunal finds that Ms Kwhali and Ms Peace were untruthful witnesses with regard to their denial that at the meeting on 2 November 2000 Ms Kwhali had not [sic] asked the Applicant if she was 'a black woman who worked at Clapton Square?' That question was put to the Applicant at that meeting by Ms Kwhali because Ms Richardson had asked her to find out if she was one of the black women who had worked at Clapton Square. That was the reason why Ms Kwhali, who was very well aware of the discriminatory implications, viewed the whole matter with distaste. She would rather not have put that question in that form to the Applicant but she did so only because she was asked to do so by Ms Richardson."
[73]Whether the tribunal were entitled to find, as they did, that Ms Kwhali posed a question in that form to Mrs Sagnia at the November meeting is the subject of another criticism. We are at present only concerned with the anterior question of whether they were entitled to find that Ms Richardson asked Ms Kwhali to "check out whether Mrs Sagnia was a black woman who had previously worked at Clapton Square".[74]In our view they were not. First, there was no suggestion in Ms Kwhali's evidence, as summarised by the tribunal, that this was the form of instruction that Ms Richardson gave her: and we have no doubt that, if Ms Kwhali had said so, the tribunal would have recorded it. Second, the instruction as found by the tribunal is one they could not rationally have found that Ms Richardson could or would have formulated. Ms Richardson knew perfectly well that Mrs Sagnia was black (the tribunal had said so in paragraph 13.3.3(2)). So did Ms Kwhali. It therefore makes no sense that Ms Richardson would have asked Ms Kwhali to check out "if Mrs Sagnia was a black woman" who had worked at Clapton Square. As both women already knew that Mrs Sagnia was black, the only relevant inquiry that Ms Richardson can have wanted Ms Kwhali to make, and did ask her to make, was whether Mrs Sagnia was one of the group of black women in question who had worked at Clapton Square at the relevant time.[75]Ms Kwhali's evidence admitted that this was the essence of Ms Richardson's instruction and the tribunal correctly summarised it in paragraphs 13.3.3(1) and (3). This thrust of the instruction was of course in substance no different from that which the tribunal found since it required Ms Kwhali to engage in the same sensitive inquiry. The question arises, however, why the tribunal chose to make the precise, and curious, finding on this topic that they did. It appears that the explanation is that, having accepted Mrs Sagnia's evidence that Ms Kwhali asked her "if she was a black woman who had worked at Clapton Square", the tribunal deduced that Ms Kwhali had posed the question in that form because that is what Ms Richardson had asked her to do.[76]Even if the tribunal were entitled to accept Mrs Sagnia's evidence as to the form of the question put to her, we can see no logical basis on which they were also entitled to find that Ms Richardson had instructed Ms Kwhali to put the question in that form. Even if, as the tribunal found, Ms Richardson had used such an extraordinary form of words in her discussion with Ms Kwhali, Ms Richardson and Ms Kwhali were both senior and experienced people, and we are not for one moment convinced that Ms Kwhali would have regarded herself as required to relay to Mrs Sagnia the ipsissima verba of Ms Richardson: she would have understood her duty simply to be to carry out the substance of the investigation she was being asked to make. But it anyway simply makes no sense to us that Ms Richardson could or would have instructed Ms Kwhali in the precise terms found by the tribunal, a finding that was unsupported by evidence.[77]In our view, therefore, that particular finding was a perverse one. We recognise that all this may go to words rather than substance. That is because we do not question (nor did Mr Cheves) the tribunal's underlying finding that Ms Richardson did ask Ms Kwhali to find out if Mrs Sagnia had been one of the group of black women at Clapton Square, who (or some of whom) had been subject to disciplinary matters. But we do question the precise way in which the tribunal found that instruction to have been formulated.[78]Moving to Mr Cheves's next criticism, we do not question the tribunal's finding that the reason that Ms Richardson saw a possible link between Mrs Sagnia and the Clapton Square women was because she and they were black and because she knew that Mrs Sagnia had been employed by Hackney at the time. The tribunal found that this amounted to the making by Ms Richardson of assumptions of racial stereotyping. Her instructions to Ms Kwhali were, they found, prompted solely by Mrs Sagnia's race whereas:
"[s]he would not have made any such racial linkage or connection if the Applicant had been a white person about whom Ms Wilson had made a statement that 'she had left Haringey under a cloud' or if the employees under investigation had all been white."
[79]Mr Cheves was critical of that finding and we do not regard it as a very helpful one. We accept that, had Mrs Sagnia been white, Ms Richardson would not have made any connection between her and the group of black employees at Clapton Square who had previously been under investigation. We do not understand, though, how that can illustrate racially discriminatory treatment on Ms Richardson's part since it appears to involve the making of a futile comparison. We make the same points with regard to the tribunal's alternative hypothesis, namely that all the employees under investigation had been white. A rather more relevant inquiry for the tribunal was how Ms Richardson would have dealt with the situation if Mrs Sagnia had been white and so had the relevant personnel at Clapton Square. If the answer to that question is that she would similarly have commissioned an investigation as to whether the white employee had previously worked at Clapton Square, that would suggest that Ms Richardson's instruction to Ms Kwhali was not discriminatory on racial grounds.[80]We are not clear that the tribunal posed this question to themselves; they appear to have confined themselves to considering hypotheses which we regard as irrelevant for the comparative exercise in which section 1(1)(a) of the RRA required them to engage and which cannot have provided any reliable answer to the all-important question as to the reason why Ms Richardson instructed Ms Kwhali as she did: compare in this context the discussion as to the appropriate comparator for the sex discrimination claim the subject of the Court of Appeal's judgment in Igen v. Wong [2005] EWCA Civ 142 ; [2005] ICR 931 , paragraphs 53 to 66. Mr Cheves emphasised that Ms Richardson was doing no more than discharging her very important duty to ensure that Mrs Sagnia was an appropriate appointee to the sensitive position she held in the CIC. She had been told in Edinburgh that Mrs Sagnia was an unsuitable appointment, which must have caused her concern and which she needed to investigate. She also knew that Mrs Sagnia had previously worked for Hackney at the same time as some black staff had been dismissed from Clapton Square. Having been put on notice of a question of Mrs Sagnia's suitability, Ms Richardson regarded it as important to extend her inquiry as to Mrs Sagnia's prior employment record at Hackney to whether she had had any connection with the women at Clapton Square: she wanted to cover all the angles. The tribunal's finding was that the instruction to cover this particular angle was racially discriminatory. The logic of such finding is that, absent concrete evidence linking, or at least suggesting a link, with the Clapton Square women, Ms Richardson could not take all the steps she regarded as reasonable by way of a thorough investigation without being charged with race discrimination.[81]We would be reluctant to express our positive agreement with the tribunal that English law has come to that but find it unnecessary to express a final view on the point. That is because we have the benefit of Mr Heath's closing written submissions to the tribunal. He dealt with the Clapton Square complaint in paragraph 13.2. The only point he there appears to have taken was that there was nothing in the complaint, because there was no evidence that Hackney's discriminatory treatment caused any detriment to Mrs Sagnia. He does not appear to have advanced a submission that Ms Richardson's treatment of her in commissioning the investigation was not discriminatory on racial grounds. Mr Cheves also takes the point on detriment, but his submission now under discussion appears therefore to be a new point not taken before the tribunal. The point is one which raises issues of mixed fact and law, and as it was not apparently the subject of defensive argument before the tribunal we do not consider that we ought to allow it to be taken afresh before us. Had the point been taken before the tribunal, it may well be that they would have expressed their findings more fully, so putting their conclusion beyond all argument. Accordingly, we rule against Mr Cheves on his submission that the tribunal were in error in finding that Ms Richardson's instruction was racially discriminatory.[82]As regards the separate point about detriment, Mr Cheves submitted that because(a) the Clapton Square inquiry came to a swift conclusion, and(b) Mrs Sagnia knew that she had not worked at Clapton Square, the finding that Mrs Richardson's instructions to Ms Kwhali caused her any detriment was insupportable. We disagree. The tribunal subsequently awarded substantial compensation for (inter alia) the injury to feelings that this head of discrimination caused Mrs Sagnia, and we do not understand the appellants to have argued at the remedy hearing that nothing was recoverable under this head. Mr Coney (who appeared for the appellants at that hearing) does not appear to have made any such submission. His point was that the tribunal must not overcompensate Mrs Sagnia and that the appropriate award for the injury to her feelings was no more than £10,000.[83]Mr Cheves next took the point that the Clapton Square complaint as against Ms Richardson was not pleaded. He said it was therefore an error for the tribunal to substitute its own grounds of complaint for those set out in the application He referred us to the decision of this tribunal in The Law Society and others v. Bahl [2003] 640, at paragraph 90, citing a clear statement of principle to that effect by Peter Gibson LJ in his judgment in Chapman v. Simon [1994] IRLR 124 , at paragraph 42.[84]We have no difficulty with the general principle upon which Mr Cheves relied. We have more difficulty with its application to the facts. Since Mrs Sagnia's amended originating application was expressed to be served "in substitution" for her original application, we must confine our consideration to that document. Mr Horan submitted that the relevant complaint was pleaded in paragraph 9 (earlier quoted): if it was not, he disclaimed any suggestion that it was pleaded anywhere else. We confess to difficulty in identifying in that paragraph any allegation that Ms Richardson made racially discriminatory remarks about Mrs Sagnia at her October 2000 meeting with Ms Kwhali. Any such allegation, if there made at all, must be regarded as implicit in the second sentence. We have come to the conclusion that that sentence does not plead the point sufficiently, if indeed at all.[85]The matter does not, however, end there. Even though the particular act of discrimination was not pleaded, we have explained how Mr Heath appears to have regarded the claim in respect of it as a live one in his closing submissions. It is fair to note that he does not in terms relate his submissions to a complaint against Ms Richardson , and he might on one view be regarded as doing no more than meeting the Clapton Square allegation in paragraph 9 of the amended originating application, which appears to be an allegation exclusively about what happened at the November meeting. But, if so, it is odd that he did not list this allegation in his earlier list of the pleaded acts of discrimination. Our overall conclusion is, however, that even though the matter was not pleaded, we infer that this head of complaint was regarded by both sides as being in the frame at the tribunal hearing and we therefore decline to accept the submission that the tribunal should not have ruled on it at all.[86]Finally, Mr Cheves made the point that the tribunal misdirected themselves in concluding (in paragraph 13.3.3(9)) that it was "just and equitable" to consider Mrs Sagnia's Clapton Square complaint against Ms Richardson even though the complaint was brought well outside the three-month time limit prescribed by section 68(1). He repeated the point that the claim had not been pleaded. Mr Heath's written submissions made it plain that the appellants were taking the time point with regard to all claims bar two and we have no doubt that this included the Clapton Square complaint against Ms Richardson. Assuming that the relevant act of discrimination occurred at, say, the end of October 2000 (the precise date is uncertain), the originating application should have been presented by the end of January 2001. In the event it was not presented until 8 September 2001 and even then the Clapton Square complaint as against Ms Richardson was not pleaded.[87]The employment tribunal's reasoning on most issues was economical and this was no exception. Its sole ground for concluding that it was "just and equitable" to consider the Clapton Square complaint was because of "the evasiveness of and the misleading witness statements made by the respondents and their witnesses …". By an order dated 2 February 2004, this tribunal referred the employment tribunal to ground 8 of the appellants' notice of appeal, namely that "the Tribunal had misdirected itself in law in exercising its discretion to extend time in respect of this complaint in that it failed properly to address material factors" and invited the chairman to record the tribunal's decision and findings on this point. The chairman's response asserted that the tribunal "took into account all relevant factors" and referred back to the extended reasons. In short, it added nothing to those reasons.[88]Mr Cheves's submission was that those reasons involved a misdirection since they took account of irrelevant considerations. We agree. The question for the tribunal was whether "in all the circumstances of the case" it was "just and equitable" to entertain Mrs Sagnia's substantive complaint of race discrimination against Ms Richardson. The "case" so referred to is not the substantive claim itself, it is the matters relevant to the inquiry under section 68(6) ( T.J. Hutchison v. Westward Television Ltd [1977] IRLR 69, paragraph 8). The manner in which the appellants defended the substantive claim at the hearing cannot be relevant to that inquiry, which went exclusively to whether the tribunal should permit the claim to be made in the first place. Nor, in principle, can the making of allegedly misleading witness statements in response to a non-pleaded claim be so relevant. We make clear that this is not a case in which the respondents had in any manner, or at any time, concealed the basis of a claim against Ms Richardson from Mrs Sagnia: Mrs Sagnia claimed she understood as from the November meeting that she had a complaint against Ms Richardson and the tribunal found that she had raised that complaint at that very meeting (paragraph 13.3.3(6)). The opening paragraph of Ms Kwhali's letter of 14 November 2000 to Mrs Sagnia also made it clear that it was Ms Richardson who had commissioned the investigation, as Ms Kwhali had previously made clear at the November meeting. What, however, Mrs Sagnia never did was to formulate that complaint by way of a tribunal claim against Ms Richardson, not even when she presented her claim on 8 September 2001. This omission needs to be assessed in light of the fact that she was no novice in employment tribunal proceedings, she having twice before brought race complaints in such tribunals. The complaint appears, as we have said, to have been regarded on both sides as a live one at the substantive hearing in 2002 and 2003 although we accept that the appellants' stance was that it was out of time. In our judgment, the tribunal did not identify any factor providing the basis for a conclusion that it was nevertheless just and equitable to consider the claim. We recognise, as Westward Television makes clear, that the degree of judgment conferred upon an employment tribunal under section 68(6) is a very wide one and that this tribunal must exercise extreme caution before reviewing a tribunal's exercise of its judgment under that subsection. But we consider that it can and should do so if it is satisfied that the employment tribunal have taken exclusively irrelevant considerations into account in exercising their judgment. In the present case, we are satisfied that they did. Mr Horan did no more in seeking to answer Mr Cheves's submission than to support the tribunal's reasoning. He did not, for example, advance any argument to the effect that, even if the tribunal had misdirected themselves, there were anyway other solid grounds on which we could ourselves uphold their decision. In our judgment, the tribunal's conclusion that it was "just and equitable" to consider the Clapton Square complaint against Ms Richardson is insupportable. The consequence is that we allow the appellants' appeal against this finding of race discrimination against Hackney and Ms Richardson based on Ms Richardson's remarks to Ms Kwhali and set it aside. (ii) The tribunal's finding that Ms Richardson asked Ms Kwhali to "contact the [Edinburgh] informant and make inquiries …"[89]Mr Cheves said the tribunal were wrong to say, when summarising the appellants' evidence, that Ms Richardson had asked Ms Kwhali to "contact the [Edinburgh] informant and make inquiries …". Ms Richardson's evidence was merely that Ms Kwhali should check Mrs Sagnia's Haringey reference; and Ms Kwhali's evidence was that Ms Richardson had not told her the informant's name, which she only learnt when Ms Richardson was required to disclose it at the tribunal hearing.[90]We find this point troublesome but do not consider that we can or should conclude that this finding was perverse. The tribunal were well aware that Ms Kwhali's evidence was that she had not been told the identity of the informant, but the tribunal simply did not believe her. Their finding, in paragraph 13.3.3(5), was that:
"… the informant's identity was known both to Ms Kwhali and Ms Peace when they had their meeting with the Applicant on 2 November 2000. It is inconceivable that Ms Richardson, in asking Ms Kwhali to carry out her investigations, would not have divulged the identity of the informant to Ms Kwhali. Furthermore, in evidence, Ms Richardson said that on her return from Edinburgh she had asked Ms Kwhali to contact the informant and enquire (see paragraph 13.3.2(2) of this decision hereinabove)."
[91]Mr Cheves would dispute that there was any evidential basis for the finding in that last sentence, but the tribunal appear to have formed a clear view to the contrary. We do not have any notes of evidence which prove or disprove the correctness of their finding. In these circumstances, we are unable to conclude that the tribunal's findings on this particular – essentially collateral – issue were ones they were not entitled to make. (iii) The finding that Ms Kwhali asked Mrs Sagnia at the November meeting "if she was a black woman who worked at Clapton Square."[92]Mr Cheves's submission was that the tribunal were not entitled to make this finding. We have had considerable concern about whether they were. We have explained our conclusion that they were not entitled to find that this was the precise form of question that Ms Richardson instructed Ms Kwhali to ask. We have also explained that we do not question that Ms Richardson did ask Ms Kwhali to check whether Mrs Sagnia had previously worked at Clapton Square, where it appears some black staff had given rise to disciplinary issues. What we do find difficult to swallow is that Ms Kwhali - herself a black woman and, if we may say so, an obviously intelligent and apparently sensitive person – would have put the particular question to Mrs Sagnia that the tribunal found she did, i.e. "Were you a black woman who worked at Clapton Square?" She knew that Mrs Sagnia was a black woman and so for her to pose the critical question in that particular form would be utterly extraordinary as well as gratuitously offensive. Given Ms Richardson's instruction, she of course had to find out if Mrs Sagnia had worked at Clapton Square and she did so. But were the tribunal entitled to find that she did so by asking that particular question? The tribunal's finding on this was in paragraph 13.3.3(3), earlier quoted.[93]Mr Cheves submitted that that reasoning is perverse. He said there was no suggestion at the hearing that Ms Kwhali was instructed to ask the question in that form and (in effect) therefore no basis for a finding that the senior and experienced Ms Kwhali would have asked it. We have already agreed with the first part of that submission. The second part raises a greater difficulty. Even though we accept that Ms Richardson did not instruct Ms Kwhali to pose the question in that precise form, Mrs Sagnia gave positive evidence that Ms Kwhali did ask such a question, however extraordinary it might seem. The tribunal made no precise finding as to what Ms Kwhali admitted to as regards the exchanges at the November meeting, but we understand it to have included an admission that an issue of a racial nature was raised – which Mrs Sagnia had always asserted and which Ms Peace had denied – and the tribunal went on to make the further finding that Ms Kwhali did ask of Mrs Sagnia the relevant question. We also note in this context that Mr Horan's closing written submissions to the employment tribunal referred in paragraph 3.1.4 to "The important respects by which, in cross examination of [Ms Kwhali], it appeared that [Ms Kwhali], albeit reluctantly, admitted that [Mrs Sagnia's] evidence was correct.". We understand that to refer, inter alia, to the November meeting.[94]With some hesitation, we have resisted the temptation to find that the tribunal were not entitled to make the particular finding that they did. They were the fact finding tribunal, they saw the witnesses and they heard the evidence. That evidence included sworn evidence from Mrs Sagnia that Ms Kwhali did ask the question. There was therefore positive evidence supporting the finding; and it appears that Ms Kwhali admitted that she had raised the Clapton Square issue at the November meeting and had done so in terms indicating to Mrs Sagnia that the connection between her and Clapton Square was one forged exclusively on the grounds of race. In these circumstances, we decline to find that the tribunal's finding was perverse. (iv) Were the tribunal entitled to find that Mrs Sagnia made a complaint at the November meeting about Ms Richardson's conduct?[95]Mr Cheves submitted that they were not. He pointed out that the making of such complaint was not alleged in Mrs Sagnia's original originating application or in her witness statement, although it was pleaded in paragraph 10 of her amended originating application. He said she did not pursue any grievance in relation to such complaint at the time, nor did she take the complaint to the Independent Referral Unit, which he said suggested that no complaint was made. On the other hand, he accepted that Mrs Sagnia gave oral evidence to the tribunal that she had made such a complaint at the November meeting, although this was disputed by Ms Peace and Ms Kwhali.[96]The tribunal accepted Mrs Sagnia's evidence on this issue and therefore found as a fact that she did make such a complaint (paragraph 13.3.3(6)). Mr Cheves criticised this finding as perverse and contrary to the objective evidence before the tribunal – which we take to be a reference primarily to the point that no grievance in relation to the complaint was pursued. In the circumstances referred to in the previous paragraph, he said that a proper determination of this issue required a more comprehensive exercise than the tribunal engaged in. He pointed out that they did no more than to make the finding: they did not explain the reasoning by which they made it, although he recognised that they were presumably applying their previously stated approach that, on matters of disputed fact, they preferred Mrs Sagnia's oral evidence to that of the appellants' witnesses, of whom the tribunal found the three main ones – Ms Richardson, Ms Peace and Ms Kwhali – to be untruthful, incredible, evasive and contradictory (paragraph 13).[97]Mr Cheves submitted, however, that this approach was not sufficient justification for the tribunal's finding as to the making of the complaint at the November meeting. He said the tribunal may have been entitled to find (as they did in paragraph 13.3.3(1)) that there were differences between the evidence of Ms Richardson and Ms Kwhali as to what had happened at the prior meeting between the two of them. But he said that shed no light on the truthfulness of Ms Peace, who was not at that meeting. He said, however, that the tribunal had wrongly labelled Ms Peace as untruthful on the premise that she had been at that meeting. His point was that there was no justification for the tribunal's finding that Ms Peace was an untruthful witness and therefore the tribunal were required to engage in a more comprehensive analysis than they did of the difference between her and Mrs Sagnia as to whether Mrs Sagnia had made a complaint at the November meeting.[98]For reasons given when dealing with Ms Peace's evidence in relation to the bias issue, we disagree with Mr Cheves that the tribunal found that Ms Peace was present at the earlier meeting between Ms Richardson and Ms Kwhali: we regard the suggestion as involving a misreading of paragraph 13.3.3(1). The tribunal's findings in that paragraph included a finding that Ms Peace was untruthful in her denial that at the November meeting Ms Kwhali had asked Mrs Sagnia "if she was a black woman who worked at Clapton Square". If, as we have held, the tribunal were entitled to find that Ms Kwhali did ask that question, we see no basis for a challenge to their finding that Ms Peace was untruthful in her denial that she did so.[99]We therefore decline to find that the tribunal were wrong to find that Ms Peace and Ms Kwhali were, in the relevant respects, untruthful witnesses. Nor do we accept Mr Cheves's basic submission that the tribunal were not entitled to find that Mrs Sagnia raised a complaint of race discrimination against Ms Richardson at the November meeting. It was the tribunal's task to decide the disputed facts. They had evidence from Mrs Sagnia supporting the assertion that she had made the complaint. They also had evidence the other way from Ms Peace and Ms Kwhali. The issue turned on what was or was not said at that meeting. The tribunal's assessment was that Mrs Sagnia was a truthful witness, in particular about the course of that meeting, and that in material respects Ms Peace and Ms Kwhale were untruthful. The tribunal were in our judgment entitled to accept Mrs Sagnia's evidence and make the finding they did. We reject the submission that the finding was illogical, perverse or insufficiently reasoned. (v) Were the tribunal entitled to find that the appellants discriminated against Mrs Sagnia by failing to investigate her complaint against Ms Richardson?[100]The tribunal did make such a finding but Mr Cheves submitted that they were not entitled to. He said that such complaint was nowhere pleaded so that it was not open to the tribunal to make that finding at all. We agree and accept the submission. Mr Heath's written submissions provide no clue that he regarded this head of complaint as one the appellants had come to meet, and we infer that he did not. He neither listed it as a head of complaint he had to meet nor dealt with it on the facts. In our judgment, the tribunal were in error in this respect. Mr Horan said that this point was not raised in the appellants' notice of appeal, but it was raised in the very full particulars of the grounds of appeal served in 2004; and, in the context of the substance of the point, we anyway regard that submission as unattractive. We could see no hardship, prejudice or injustice to Mrs Sagnia in allowing the appellants to take this point, as well as the like ones in relation to other unpleaded claims that the tribunal found established, to which we shall come. We allow the appeal against this finding of race discrimination against Hackney and set it aside. (vi) Were the criticisms of Ms Kwhali's letter of 14 November 2000 justified?[101]Mr Cheves criticised the tribunal's criticism of Ms Kwhali for saying to Mrs Sagnia what she did in this letter as to the reason for the Clapton Square inquiry. We have earlier summarised the tribunal's point. We see no basis for any challenge to it. We do not understand Ms Kwhali's evidence to have been to the effect that Ms Richardson had suggested that Mrs Sagnia had worked at Clapton Square: she simply wanted to find out whether or not she had. (vii) Were the tribunal entitled to find that Mrs Sagnia had established the discrimination based on the alleged staff complaints?[102]We understand the only act of victimisation found to be proved under this head to be the appellants' failure to investigate the "issue of potential race discrimination in the complaint" referred to in the tribunal's finding in paragraph 13.4(9) (earlier quoted in full). The tribunal's finding as to the reason for such failure is because Mrs Sagnia had earlier raised her complaint against Ms Richardson. The tribunal found that, as a result, the appellants had treated her less favourably than would have been the case if she had not made the complaint.[103]Mr Cheves makes several complaints about aspects of the tribunal's finding in relation to the staff complaints. First, in paragraph 13.4(2) the tribunal found that Mrs Sagnia was "never given an opportunity to deal with the [staff's alleged concerns about her] as she was never given full details of those concerns". This was Mrs Sagnia's evidence, which the tribunal accepted. Mr Cheves said the finding ignored the documentary evidence of supervision meetings between Mrs Sagnia and Ms Peace on 4, 8 and 11 December 2000, which record, albeit in the most skeletal and generalised terms, the raising and discussion with Mrs Sagnia of at least certain staff complaints. We understand that these documents were put to Mrs Sagnia at the hearing and the tribunal lists them in paragraph 13.5(1). They do not illustrate that "full details" of the staff's concerns were put to her, the tribunal's finding being that she was never given such details. We feel quite unable to review the tribunal's finding on this issue. They had Mrs Sagnia's evidence on the topic, they also had such documents as touched on it and they made the finding they did. We do not consider that we can regard that finding as unsupported by evidence.[104]Second, Mr Cheves criticised the tribunal's finding in paragraph 13.4(6) in relation to the memo prepared by Ms Lynch. They there said that "No evidence has been adduced … to show that the team at Downham Road associated themselves with any of the complaints against the Applicant." In paragraph (7), they went on to say that "The Respondents have not called any witnesses to substantiate the allegations in the memo dated 9 February 2001." Mr Cheves said the suggestion underlying the former finding was that the appellants could, and perhaps should, have called members of the Downham Road team to give evidence. He said that in any event there was hearsay evidence from both Ms Kwhali and Ms Peace that other staff members did associate themselves with the complaints against Mrs Sagnia. He said that this finding simply ignored that evidence and was wrong. We are inclined to agree that it was unsatisfactory for the tribunal to deal so superficially with the evidence, but cannot see that the particular finding complained of goes directly to the actual finding of victimisation that the tribunal did make. That was simply to the effect that the appellants did not carry out a particular investigation.[105]Third, Mr Cheves said that the tribunal's dismissal of Ms Elliott's evidence as untruthful was inadequately explained. We are inclined to agree, but again cannot see that its rejection goes to the particular finding of victimisation that was made.[106]Fourth, Mr Cheves referred to the findings in paragraph 13(4)(9) and said that the tribunal had failed to explain how they had arrived at a finding of some unhappiness by staff but not as much as claimed. We agree, but again do not see the relevance of this omission to the particular finding of victimisation that was made.[107]Fifth, Mr Cheves said, and we agree, that the only finding of victimisation that the tribunal made in relation to the alleged staff complaints was the failure to address the issue of potential race discrimination in the complaint against the two black managers. He said this was not pleaded. We agree. Nor does it appear from his written closing submissions that Mr Heath regarded this as a claim that he had to meet. The claim he did seek to meet under this head of the claim was the pleaded allegation that Ms Peace failed to provide Mrs Sagnia with details of staff allegations about her management style. We record, however, that in addition to his submissions on this he also said in paragraph 20:
"While on a separate point to the pleaded act of discrimination on this issue, on the question of whether the complaint itself may have had a racist component, R was alive to this possibility given the memo was on the face of it anonymous and A claimed that it was the work of one disgruntled white woman. JK investigated this possibility and was satisfied that there was not a racial component for 2 reasons: a) the majority of staff who made the complaint were black (which is obviously not an end to the matter) and b) JK satisfied herself that the staff's complaints were genuinely held, and based on legitimate staffing concerns which caused staff genuine and serious distress."
[108]We understand those observations to go to the matter which the tribunal did find to be an act of victimisation but do not interpret them as reflecting an acknowledgment by Mr Heath that this unpleaded claim had been brought informally within the list of claims that the appellants had to meet. We interpret him as doing no more than making submissions about a related matter that had arisen during the case. The making of those submissions did not turn that matter into a new claim. The tribunal appear to have found the relevant allegation proved and then to have taken the further step of treating it as a claim which was properly before them. In our view they were in error in doing so. They appear, however, to have made no finding that the complaints that Mrs Sagnia did plead under this the head of staff complaints amounted to race discrimination against, or victimisation of, her. We allow the appeal against, and set aside, the tribunal's only finding of victimisation made in relation to staff complaints. (viii) Were the tribunal entitled to make the finding they did in relation to the extension of Mrs Sagnia's probation period?[109]The criticism here was that whereas the judgment of the appellants was that Mrs Sagnia's shortcomings were such that an extension of the probation period was justified, the tribunal erroneously substituted their own judgment and preferred the view that it was not. Mr Cheves said this was an illegitimate stance for the tribunal to adopt. If that had been the sole basis of the tribunal's decision, we would have seen much force in the criticism. However, the tribunal went further and found (in paragraph 13.5(12)(iv)) that:
"… an important factor in Ms Peace's decision to extend the Applicant's probation in March 2001 was the fact that the Applicant had alleged that Ms Richardson had discriminated against her on racial grounds and that she continued to pursue that allegation"
[110]We interpret that as a finding that a material factor in the decision was the making of the original complaint against Ms Richardson. That was a finding of fact that we consider that the tribunal were entitled to make and we cannot see that it was perverse. Provided that such consideration played a material part in the relevant decision, as we understand the tribunal to have found, it was in our judgment sufficient to provide a proper basis for the tribunal's finding of victimisation.[111]Mr Cheves also challenged the soundness of the tribunal's reasons for finding that, even though this complaint was brought after the expiration of the three-month time limit, it was nevertheless just and equitable to consider the complaint. We have earlier summarised the tribunal's reasons for so concluding and are not persuaded that they involved any misdirection.[112]Finally, Mr Cheves challenged the finding by the tribunal of unlawful aiding under section 33 of the RRA (they did not, however, make a finding as to who is said to have so aided whom). Mr Cheves said that this was never pleaded or raised, and we have been shown nothing to suggest the contrary.[113]We allow the appeal against this head of the tribunal's decision insofar as it rests on section 33 of the RRA, but otherwise dismiss it. (ix) Were the tribunal entitled to find that Mrs Sagnia's dismissal amounted to victimisation?[114]Mr Cheves criticised this decision too but we see no grounds for challenge to the tribunal's conclusion that they could and should infer that the reason for the dismissal was the making of the original complaint against Ms Richardson. (x) Were the tribunal entitled to find that Mr Plummer's insistence that Ms Richardson conduct the appeal amounted to victimisation?[115]Mr Cheves said the tribunal's expressed view that Ms Kwhali could have heard the appeal was perverse. We read that particular suggestion by the tribunal with some surprise but do not dwell on it because the tribunal's ultimate decision on this was Hackney could and should have found someone other than Ms Kwhali or Ms Richardson to hear the appeal. We see much force in that.[116]The heart of Mr Cheves's complaint here is that the tribunal were anyway wrong to find that Mr Plummer's insistence that Ms Richardson should hear the appeal amounted to victimisation. He said there was no evidence or finding that Mr Plummer knew that Mrs Sagnia had made the complaint against Ms Richardson at the November meeting; and no finding that he knew of any other protected act that could found this particular finding of victimisation.[117]We agree that the tribunal made no findings to that effect and we regard that omission as a matter of concern. It is of the essence of a finding of victimisation under the RRA that the perpetrator of the act treated the claimant relatively unfavourably because of his doing of a protected act within the meaning of section 2. A finding of an act of victimisation of the claimant by X requires a finding of the doing of a protected act by the claimant, proof that X knew of it and a reasoned explanation of the basis on which the tribunal is finding, or inferring, that X's treatment of the claimant was because of the doing of the protected act.[118]In this case, the tribunal made no findings as to these matters. Whilst Mr Plummer's letter of 31 July 2001 shows that he knew that Mrs Sagnia had made complaints about what she had called "potentially malicious allegations" against Ms Richardson, and that he also knew that Mrs Sagnia believed that "issues raised by [Ms Richardson] had been the prime cause of [Hackney's] decision to extend the probation process", we do not understand this to be a reference to either the original or (so the tribunal found) the repeated complaint of race discrimination by Mrs Sagnia against Ms Richardson: we understand it to be a reference to subsequent allegations that Mrs Sagnia claims Ms Richardson made against her (referred to in general terms in paragraph 28.2 of the amended originating application). There is nothing on the face of the tribunal's reasoning to show that Mr Plummer knew of the protected act or, if in fact he did, no reasoning to show a link between such knowledge and his stance in relation to the appeal.[119]These woeful deficiencies in the tribunal's reasoning have caused us to conclude that the finding of victimisation by Mr Plummer cannot stand. Such a finding is a serious matter and it is elementary that the tribunal owed it to the parties to explain the basis for making it. They have not done so and we cannot be satisfied that there was any sound basis for it. We allow the appeal against this finding by the tribunal and set it aside. We do not consider it appropriate to remit this single matter for a re-hearing. (xi) Were the tribunal entitled to find that Hackney's failure to investigate Mrs Sagnia's race discrimination complaint contained in her letter of 25 July 2001 was an act of race discrimination by Hackney?[120]Mr Cheves's short point on this is that, again, this is a finding of discrimination on a matter which was not pleaded. Mr Heath's closing submissions make no mention of the matter and there is nothing that satisfies us that he or the appellants regarded this as a complaint that they had to meet. We also allow the appeal against this finding by the tribunal and set it aside. Summary of our decision on the appeal against the liability decision[121]The tribunal listed in paragraph 14 of their extended reasons the seven bases on which they found that the appellants, or one or more of them, had committed acts of race discrimination or victimisation against Mrs Sagnia. By reference to each listed matter, the result of our conclusions is as follows:(1) We allow the appeal against this finding and set aside the tribunal's decision.(2) We allow the appeal against this finding and set aside the tribunal's decision.(3) We allow the appeal against this finding and set aside the tribunal's decision.(4) We allow the appeal against the finding of liability under section 33 of the RRA, but otherwise dismiss the appeal against this finding.(5) We dismiss the appeal against this finding.(6) We allow the appeal against this finding and set aside the tribunal's decision.(7) We allow the appeal against this finding and set aside the tribunal's decision. The appeal against the remedy decision[122]We have earlier listed the five heads of award made by the tribunal at the remedy hearing, those heads totalling £47,271.70 inclusive of interest. In addition, the tribunal awarded Mrs Sagnia £10,000 costs. The appeal against the remedy decision is, we understand, premised on the basis that the appeal against liability would fail. On that premise, the appeal was limited to challenging only two aspects of the remedy award: namely,(i) the award of £15,000 compensation for injury to feelings, and(ii) the award of £5,000 by way of aggravated damages. In addition, the appellants also challenged the costs award although they did not challenge the amount (which was an agreed one) if the award were, in principle, to be upheld. They advanced no challenge to the award of £5,000 for psychiatric injury or of £17,130 for loss of earnings, the latter being an agreed figure.[123]We have come to the conclusion that it is unnecessary and inappropriate for us to attempt to consider the issues raised by the remedy appeal. The outcome of our decision on the liability appeal is that we have reversed the tribunal's liability decision in five material respects, including in particular their decisions that Mrs Sagnia had established a claim of race discrimination against Ms Richardson and that Hackney had failed to investigate her complaint in that respect. The tribunal made it clear, in paragraph 12(1) of the extended reasons for their remedy decision, that they regarded those decisions as at the heart of Mrs Sagnia's claims for compensation for injury to her feelings, including aggravated damages. To put it neutrally, we question whether the tribunal would have made the awards that they did had they found the appellants liable merely to the limited extent that we have upheld their decision. We similarly question whether, in that event, the tribunal would have made their costs award. In addition, the tribunal's interest calculations were made as from 2 November 2000, but in the light of our decision that can no longer be a relevant starting date. The only figure which appears to us still to be sound, despite our decision, is the agreed figure of £17,130 for loss of earnings, which we presume Mrs Sagnia is still entitled to, we having upheld the tribunal's decision on head (5). We cannot think that our decision to allow the appeal against the decision on head (6) can make any difference to this.[124]In the circumstances, we will set aside the remedy and costs awards save only the award of £17,130 in respect of loss of earnings. We will remit for a re-hearing any other heads of claimed loss (and interest thereon and on loss of earnings) and any claim for costs. As Mr Menon has died, there is no question of the matter being remitted to the same tribunal (although in principle it could at least be remitted to the same lay members), although even if he were still alive we would in any event have remitted the matter to a freshly constituted tribunal. In the light of their unqualified criticisms of the tribunal, and our wholesale undoing of much of the tribunal's decision, we have no doubt that the appellants would regard us as dealing them an unfair hand were we to remit the matter to any of the same tribunal members. In all the circumstances, we consider that better justice will be seen to be done if the matter is remitted to a freshly constituted tribunal. That is what we shall direct. We will consider any representations the parties may wish to make as to the form of our order (including, as regards the appellants, whether they wish to submit that the loss of earnings figure should also be remitted for re-consideration at the re-hearing).