MS L OYARCE v CHESHIRE COUNTY COUNCIL [2007] UKEAT 0557_06_1306

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0557_06_1306

Case No Appeal No. UKEAT/0557/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS L OYARCEAPPELLANT

CHESHIRE COUNTY COUNCILRESPONDENT

Before

Mr Justice Wilkie Dr S R Corby Mr P Gammon

Date 13 June 2007

[1]APPEARANCES For the Appellant MS M PLIMMER (Of Counsel) Instructed by: Messrs Thompsons Solicitors Acresfield 8 Exchange Street Manchester M2 7HA For the Respondent MR P GILROY QC Instructed by: Cheshire County Council Legal Services County Hall Room 231 Chester Cheshire CH1 1SF SUMMARY RACE DISCRIMINATION Victimisation Burden of proof Appeal – Perversity challenge on finding important for remedy. Cross-Appeal – Did ET misdirect itself on burden of proof on victimisation claim. THE HONOURABLE MR JUSTICE WILKIE On 20 June 2006 Judgment of the Employment Tribunal held at Shrewsbury after a hearing on 8, 9, and 11 November 2005 and 30 March 2006 was sent to the Claimant, Ms L Oyarce and Cheshire County Council. The Employment Tribunal concluded, amongst other things, that she had been discriminated against by the Respondent, contrary to Section 1(1)(a) of the Race Relations Act 1976 ; and was victimised by Gillian Green contrary to Section 2(1)(d) of the Race Relations Act 1976 . The Tribunal also decided that the Claimant was not discriminated against by Ann Lloyd and was not victimised by Ann Lloyd. The Appeal

[2]Notwithstanding the fact that she succeeded in two of her claims the Appellant, Ms Oyarce, seeks to overturn one of the important findings of the Tribunal namely where they decided against her that her resignation on 31 July 2004 to go to another job was not on account of the discrimination which they had found to have taken place on 25 May 2004.

[3]The relevant chronology has been set out helpfully in the Appellant's skeleton argument and, in so far as is relevant, is as follows. In 1983 she commenced employment with the Respondent as a residential care worker at an establishment known as Redsands. In 1992 she became a residential social worker at that establishment. In June 1995 she took up a temporary position of acting group leader at another establishment at Oak House for a period of 18 months. In 1997 she applied for that group leader position permanently but was unsuccessful. At that time she made complaints in relation to the selection process including an allegation of discrimination against Gillian Green. She was advised to complete the Diploma of Social Worker (Dipsw) in order to enhance her chances of promotion. In 2000 she began the course to achieve that qualification and in due course she did.

[4]In April 2003 she applied for the position of group leader at Redsands and attended an interview with a panel including Gillian Green and in June 2003 was informed that she had been unsuccessful in obtaining that position.

[5]On 14 August 2003 she lodged a claim in the Employment Tribunal alleging race discrimination in relation to that failure. That complaint was withdrawn on 29 January 2004. In September 2003 she began working as acting group leader 3 days a week at an establishment known as Bridge Meadow and on 1 January 2004 began working full-time as acting group leader at Bridge Meadow.

[6]On 7 May 2004 she applied for a position as a social worker with the Respondent, but in a different department at Vale Royal and under different immediate management. Her position as acting group leader at Bridge Meadow was due to come to an end on 1 July 2004 on which date she was due to return to her substantive post as residential worker at either Oak House or Redsands.

[7]On 25 May 2004 a person known as Mike Westhead was given the position of acting group leader at Oak House/Redsands. This was the act of discrimination found by the Tribunal.

[8]On 17 June 2004 Ann Lloyd asked the Appellant about applying for a group leader's post at another establishment known as Prior's Hill which had been advertised on 3 June 2004. The Appellant indicated that she had not applied for that post and told Ann Lloyd that the reason was that she did not perform well at interview. On that date she was informed that Mike Westhead had been appointed to the position of senior residential social worker at Oak House. She expressed disappointment at not being informed about that vacant post.

[9]On 1 July 2004, as envisaged, she returned to Oak House, her temporary position of acting group leader at Bridge Meadow having terminated. On 20 July 2004 she attended an interview for the position of social worker at Vale Royal. On 29 July she was offered that position and she accepted it immediately resigning from her post as residential social worker at Redsands on 31 July giving one month notice.

[10]The Tribunal identified in paragraph 3 of its decision eight substantive allegations made by the Appellant. Of those eight the Tribunal found one of them wholly established and one of them only partially established. The one of which they found was wholly established was her complaint that she had not been considered for the temporary group leader post at Oak House. The comparator in question was Mike Westhead. The allegation was one of direct discrimination alternatively victimisation.

[11]The second complaint, which was found partially to be established, was that she was not allowed to act up for a month as group leader so as to allow her to finish her secondment early, and to return to Redsands. The Tribunal accepted that this was a legitimate criticism.

[12]The other allegations made, which were set out at 3.1, 3.4, 3.5 and 3.6 of the decision, were each rejected. Each of them concerned allegations of events in relation to which there was evidence given both by the Appellant and by witnesses from the Respondent. There was another allegation, allegation 3.7, alleging discrimination in allocation of over-time working which was not accepted by the Tribunal but which did not involve conflicts of evidence about events.

[13]As we have indicated, the substantive allegation which the Tribunal declined to find in her favour and which has given rise to this appeal was allegation 3.8. It was that, because of the Respondent's treatment, she resigned on 30 July 2004 giving one month's notice. The Tribunal addressed this issue in paragraph 67 of the decision which reads as follows:

"67. In respect of the final substantive allegation 3.8, namely, that the claimant had resigned because of the respondent's treatment of her, the Tribunal does not accept this to be the case. When the claimant applied for the position of social worker in March 2004 she had no outstanding complaints raised against the respondent. The claimant's evidence that she merely applied for interview experience was contradicted by the fact that she refused to act upon Ann Lloyd's suggestion that she should apply for the group leader's post at Prior's Hill. The reason she gave the Tribunal for not applying was that the interview panel consisted of Martin Watkins (who had given her a good appraisal) and Gillian green. The reason she gave Ann Lloyd (which was not disputed by the claimant) was that she did not perform well at interview. The interview took place on the 18 July, some 4 months after the claimant had applied for the position, and the claimant immediately accepted the offer. On the balance of probabilities, the Tribunal finds that the claimant applied for and accepted the position of social worker because it advanced her career and increased her salary, and not because of the respondent's discriminatory treatment of her. In arriving at this decision the Tribunal took into account the claimant's refusal to apply for the permanent team leader's position at Prior's Hill and her contradictory explanation for the failure to do so."

[14]The Appellant attacks this finding on 2 bases. It is said that there was no evidence to support the material finding or alternatively the Tribunal self evidently made a fundamental mistake as to fact which permits the EAT to conclude that there has been an error of law.

[15]The second ground really is a corollary of the first and is that the Tribunal failed to apply the appropriate test in making its finding on causation. This is not withstanding the fact that in the decision itself they made a specific finding that the reason that she had accepted the social worker position and resigned from her position as residential social worker was not because of the Respondent's discriminatory treatment of her. The Appellant says that if the Tribunal had correctly addressed itself to the fundamental facts then it could not but have concluded that a significant reason though not necessarily the sole or main reason, for that decision, was the discriminatory treatment as found by the Tribunal. In our judgment this second ground of appeal has no life if the first ground of appeal does not succeed.

[16]The Appellant accepts that the approach of the EAT to what essentially are perversity arguments is as described by Mummery LJ in the case of Yeboah v Crofton

[2002] IRLR 634

in which at paragraphs 93 – 95 he said:

"93 Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34. 94 Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal. 95 Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal."

[17]On 2 March 2007, at a preliminary hearing before a full panel of the Employment Appeal Tribunal an order was made requiring the ET to answer certain questions in relation to paragraph 67 of its reasons. Those were: what evidence did the Tribunal rely upon in concluding that the Appellant applied for and accepted the position of social worker because it(1) advanced her career and

(2) increased her salary. In response to that question the Tribunal Chairman, amongst other things, stated the following:

"2 In cross examination Counsel asked the claimant whether the social worker position was a good move and clear progression. The claimant disagreed that it was, and the only reason she gave for this was the way the press treated social workers. The claimant was questioned on whether she was better off financially with the social work ("

Wywern") position, to which the claimant replied "basics" before raising the issue of overtime and the standby rota. From the claimant's reply and with reference to the schedule and counter-schedule of loss, the Tribunal concluded that the claimant was better off in respect of her basic salary, which she confirmed was £1400 net in the last month she worked at Redsands in the position of residential social worker compared with the £2600 net earned in the "last two months" as a social worker. At this point in the evidence the claimant made reference to the overtime she had worked previously at Redsands. The Tribunal considered the schedule of loss in chambers and noted that the group leader position and residential social worker position were on the same rate of pay i.e. SCP 34 £25,407, both at a higher rate of pay than the pay that the claimant received as a residential social worker." And at paragraph 5:

"5 The vacancy for the group leader position came after the claimant had applied for the social worker position, which was made during a lengthy period when the claimant was not discriminated against on her own admission. The Tribunal took into account the claimant's credibility which had been undermined by the claimant not referring to Ann Lloyd's suggestion that she should apply for the group leader's post at Prior's Hill until this was raised with her in cross-examination, the fact that the claimant gave Ann Lloyd a different reason for not applying for the group leader's post at Prior's Hill to that which she gave the Employment Tribunal and the fact that the claimant subsequently sought to persuade Ann Lloyd to give her an eleven hour contract at Redsands in August 2004 (paragraph 35 of the reasons) which clearly indicated an intention to remain working there."

[18]In relation to the question of salary the Tribunal referred, amongst other things, to a counter-schedule served by the Respondent on 29 September 2005 in which it described the pay scales for the various positions at the relevant time. Those pay scales do not accord with the last sentence in paragraph 2 of the Tribunal Chairman's explanation. What they do show however, is that a residential social worker was paid on scale SCP 27. A group leader was paid on the same scale between points 31 – 36 and a social worker was paid on the same scale between 25 and 34 with a bar at 28 which would normally be achieved 2 years after qualifying. Therefore, the Appellant was earning less now as a qualified social worker than she was as a residential social worker or group leader but the Tribunal went on to say that she has extra duties: EDT, for which she is paid per session, if called; £91.11 for assessment related tasks; £34.45 for Service Provider tasks. In addition there was a schedule which set out in respect of the social worker, group leader, and the residential social worker positions the basic pay and net pay for various months. In relation to the social worker position the basic pay throughout was somewhat lower than for the residential social worker position but when there was added to that the various EDT standby payments for the couple of months after she was engaged as a social worker the net pay in respect of that position was significantly in excess of that for the residential social worker position. In addition to that, the Tribunal also had material before it in the form of a counter-schedule to which we have already referred that her formal offer letter for the social worker post of 29 July 2004 provided that she would be given £2,000 by way of a "golden hello".

[19]The appeal in Ground 1 focuses on paragraph 67 of the ET's decision. It invites us to focus on the sentence which reads:

"On the balance of probabilities, the Tribunal finds that the claimant applied for and accepted the position of social worker because it advanced her career and increased her salary and not because of the respondent's discriminatory treatment of her."

It is said that the statement that taking up the social worker position increased her salary was demonstrably false. It was a crucial finding and, therefore, fell within the type of case in Yeboah v Crofton which would require us to conclude that the Employment Tribunal had erred in law.

[20]In our judgment that is an erroneous submission for a number of reasons. First, it is clear, reading paragraph 67 as a whole, that the Tribunal found against the Appellant because it formed a judgment on this particular issue, informed by all the evidence in the case including her credibility. In addressing this particular issue it had regard to a whole series of facts which it found which have not been challenged in the course of this appeal and which we have rehearsed in reminding ourselves of precisely what it was that the Tribunal said in paragraph 67.

[21]Furthermore, it seems to us that, save for the relatively minor slip at the end of paragraph 2 of the further explanation, it is clear that when the Tribunal said that it increased her salary what they had in mind, as they explained, was the material which was in the counter-schedule and in the other schedule to which we have referred which shows that, in terms of salary, the social worker position as compared with the residential social worker, was better paid if one includes, as salary, both basic and EDT standby payments. Therefore, far from being erroneous, the statement that it increased her salary to be employed as a social worker rather than as a residential social worker was accurate.

[22]As far as it is said that the ET made a fundamental error of fact in asserting that she had advanced her career, it was certainly true, as the Tribunal itself had recorded, that over a period of time she had sought to advance her career by moving from front line social work into management. The Tribunal rehearsed a series of occasions on which she had attempted to move into management, or had sought and obtained qualifications which would enable her so to do. The Tribunal, however, had to decide what it was that lay behind her decision at the time to change job and they were perfectly entitled to conclude that moving into the social work position did advance her career and was not by reason of the discrimination which they found had occurred on 25 May. The evidence for that, as described by the Tribunal, was that she had applied for that job at a time when there was no outstanding discrimination, that she had declined to apply for a group leaders post at Prior's Hill, had given contradictory explanations why she did not do so, and that she had accepted the social work position immediately upon its being offered to her. In our judgment the appeal is an attempt to dress up findings of fact in relation to this issue as errors of law. We have no hesitation in concluding that it does not surmount the high hurdle established by Yeboah v Crofton . That being so, in our judgment neither Ground 1 nor Ground 2 do establish any error of law in relation to this issue. Therefore the appeal must fail. The Cross Appeal

[23]The cross appeal is in relation to the finding against Gillian Green of victimisation set out in paragraph 69 of the Decision. That paragraph and paragraph 72, where the question of Gillian Green not giving evidence orally was dealt with, read ambiguously. It is not clear from their terms whether the Tribunal was applying a reverse burden of proof, as required by its understanding of the statute, or was applying the well established common law approach in cases of discrimination that, where there is prima facie discrimination which calls for an explanation from the Respondent, in the absence of an explanation the Tribunal is entitled, though not necessarily bound, to draw an adverse inference against the Respondent. Certainly, on one reading, it would appear to be more consistent with the latter approach than the former. However, the Employment Appeal Tribunal, on 2 March, asked the Chairman what tests the Tribunal had applied in considering the claim of victimisation. The answer was that the Tribunal applied the tests set out at paragraphs 47 and 49 of the Reasons namely the test provided by Section 54A of the Race Relations Act 1976. The ET stated that the Respondent satisfied the reverse burden of proof in respect of Ann Lloyd but not in the case of Gillian Green for the reasons given in paragraphs 70 – 73. The argument raised by the Respondent by way of cross appeal is whether the Tribunal erred in law in applying the statutory reverse burden of proof.

[24]Mr Gilroy concedes that this is an argument which seems counterintuitive but he says that it is a good submission based not only on domestic legislation but also having regard to the Council Directive 2000 43 DC , in compliance with which changes were made to the Race Relations Act 1976 . He says that both sources reveal a distinction between, on the one hand, discrimination, whether direct or indirect, which attracts a reverse burden of proof, and discrimination in the form of victimisation which does not. The Tribunal, in applying the reverse burden of proof in relation to victimisation, erred in law.

[25]Section 54A of the Race Relations Act 1976 , which was inserted in 2003 pursuant to the United Kingdom's obligation under the Directive, reads, in so far as is relevant, as follows:

"(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent – (a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a),"

Section 54A(2) makes provisions for the reverse burden of proof. Section 54 of the Race Relations Act 1976 is the section which gives jurisdiction to the Employment Tribunal to hear a complaint by any person that another person – (a) has committed an act against the complaint which is unlawful by virtue of part 2 of the Act.

[26]Mr Gilroy says that in order to find the ambit of the operation of Section 54A(1) one is obliged to look at Section 1(1B)(a), Section 1(1B)(a) refers to Part 2 of the Act. Part 2 of the Act begins with Section 4 and Section 4 provides:

"It is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against another to see by subjecting him to any other detriment."

Section 3 of the Race Relations Act 1976 does not fall within Part 2 but falls within Part 1. Section 3(3) provides that:

"In this Act (a) references to discrimination refer to any discrimination falling within Section 1 or 2; and (b) references to racial discrimination refer to any discrimination falling within Section 1, and related expressions shall be construed accordingly."

Section 1 concerns racial discrimination and it provides, so far as is relevant, as follows:

"1. (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that other less favourably than he treats or would treat other persons (which is direct discrimination) Section 2 provides for discrimination by way of victimisation, in so far as is relevant, as follows: (1) A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has – (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

[27]What Mr Gilroy says is that the crucial words of Section 54A(1) are the requirement that the complaint is that the Respondent "has committed an act of discrimination on grounds of race or national origins". That being so it relates solely to discrimination under Section 1 and does not apply to discrimination under Section 2 which is discrimination by way of victimisation. What he says is that the reference to discrimination being unlawful by virtue of any provision referred to in Section 1(1B)(a), that is to say Part 2 discrimination in the employment field, is limited by the words "discrimination on grounds of race" and therefore, by reason of Section 3(3), is limited to discrimination falling within Section 1.

[28]He therefore says that there is a clear distinction under the statutory scheme provided by the Race Relations Act 1976 between discrimination on grounds of race, under Section 1, where the statutory reverse burden of proof applies and discrimination by way of victimisation, which is not discrimination on grounds of race but is discrimination in respect of a person doing a protected act, to which the reverse burden does not apply.

[29]He acknowledges that as this statute relates to anti discrimination legislation and derives from the European Directive there is an obligation on domestic courts to construe it purposively. Thus, if it were clear that the Directive did require the United Kingdom to apply a reverse burden of proof in cases of victimisation then the court should strive, in so far as it properly could, to construe the provisions consistent with that European legislative intention.

[30]However, he points out that the Directive points to the distinction as, apparently, being deliberate. The Council Directive 2000/43/EC by Article 1 states its purpose: to lay down a framework outlawing discrimination on the grounds of racial or ethnic origin with a view to put into effect in the Member States the principle of equal treatment. Article 2 sets out the concept of discrimination and subparagraph (1) reads:

"(1) for the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin."

Article 8 falls within Chapter 2 which deals with remedies and enforcement and is entitled "Burden of Proof". It reads:

"1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

Article 8(2) provides that paragraph 1 should not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. Article 9 is headed 'Victimisation' and it states:

"Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment."

[31]Mr Gilroy points out that the Directive is specific and explicit. Article 8 on 'Burden of Proof' refers back to the principle of equal treatment based on racial or ethnic origin. Article 9, by contrast, deals with victimisation and concerns the adverse consequences as a reaction to a complaint being made with a view to enforcing compliance with the principle of equal treatment.

[32]The provision in the Directive in relation to the reverse burden of proof, he says, is explicitly limited to direct or indirect discrimination and is not at all concerned with the obligation in respect of victimisation. He concludes that the provisions in Section 54A of the Race Relations Act 1976, as amended, faithfully reflect this distinction are in no way inimical to it and therefore do not require any purposive construction in order to make them comply. We agree.

[33]Ms Plimmer for the Appellant responding to this cross-appeal sought to argue that the proper construction, applying conventional rules of construction, did involve that Section 54A applies to discrimination on the grounds of victimisation but, for the reasons that we have given, we do not agree with that construction.

[34]She also prayed in aid certain of the paragraphs contained in the preamble to the Directive and, in particular, the concept that nothing in the Directive should reduce the level of protection which previously existed in the Member States. From this she sought to argue that there was a single concept of discrimination which embraced direct/indirect discrimination and discrimination by way of victimisation and that giving effect in the United Kingdom domestic law to the principle under Article 8 would derogate from the level of protection given by UK domestic law by creating a two tier system of discrimination direct and indirect discrimination where the reverse burden of proof applies; and discrimination by way of victimisation where the conventional burden of proof applies.

[35]In our judgment the introduction of a reverse burden of proof for some, but not all, acts of discrimination would not involve a reduction in the existing level of protection but an enhancement of the domestic level of protection in respect of some manifestations of discrimination whilst leaving other manifestations of discrimination much as they were.

[36]We point out that, although obviously of some significance, Section 54A establishes as a rule of law an approach which is not dissimilar to the approach which the common law has developed in relation to the burden of proof in cases of discrimination. Under the common law the Tribunal is empowered to draw inferences in certain circumstances. Now it is obliged to decide cases in accordance with the reverse burden of proof. Undoubtedly that is a difference but it is possible to exaggerate its importance.

[37]Ms Plimmer has taken us to a number of other areas of anti discrimination legislation, particularly sex discrimination, the Equal Treatment Directive and regulations made pursuant to that Directive. She also reminds us of what Lord Bingham said in St Helens Borough Council v Derbyshire [2007] UKHL (para 6):

"" … Ms Gill submitted that our domestic provisions relating to discrimination should be interpreted and applied in a broadly similar manner, and in a manner consistent with European Community legislation in areas to which such legislation applies. I would accept that submission. It may well be that there are differences (other than as to their subject matter) between one domestic provision and another, but none is said to be significant in this case and the provisions have a very similar purpose. It was not suggested in argument that there is, in a respect relevant to this case, any disharmony between the European directives referred to and our domestic legislation.""

It certainly does appear, and Mr Gilroy did not seek to persuade us to the contrary, that the various provisions to which Ms Plimmer has referred us in relation to sex discrimination and equal treatment on grounds of religion, age and so on do not replicate the distinction between direct and indirect discrimination on the one hand and discrimination in the form of victimisation on the other so as to apply a reverse burden of proof to the former and not to the latter. On the contrary, it does seem to be the case that the reverse burden of proof applies equally in those jurisdictions to all types of discrimination, however it may be caused, whether direct/indirect or by way of victimisation.

[38]That gives us pause for thought but, having looked at the provisions both of Section 54A and the Council Directive 2000/43/EC it certainly seems to us that there has been an apparently deliberate attempt to distinguish between discrimination on grounds of race, and victimisation in that the reverse burden applies to the former but not to the latter. We cannot see our way clear to construing them otherwise. Therefore, with some degree of hesitation and disquiet, we have decided that Mr Gilroy's contention is correct and that the Employment Tribunal did err in law in deciding the issue of victimisation by Gillian Green on the basis of the statutory reverse burden of proof rather than applying the common law approach to which we have already adverted.

[39]At the conclusion of our hearing this morning we indicated to the parties that this was our view of the law and we invited them to make submissions as to the remedy. Although initially each of them, from their different perspectives, suggested that we could decide the matter ourselves, we expressed some misgivings over that course and suggested that the more sensible and practical course was to remit this particular issue to the same Tribunal for it to determine. We have adopted that course. The conclusion of this cross-appeal is that it is allowed and that this matter will be remitted to the same Tribunal to consider the issue of victimisation in respect of Gillian Green in accordance with the proper burden of proof and that the statutory reverse burden provided for by Section 54A of the Race Relations Act 1976 does not apply.

[40]It seems sensible that that hearing should take place at the outset of the outstanding remedies hearing but that is a matter for case management by the Employment Tribunal

[41]We give permission to the Appellant to appeal to the Court of Appeal in respect of the cross-appeal. Costs

[42]The Respondent has sought its costs on the appeal. This is a case in which there was an order for a preliminary hearing before a fully constituted Tribunal at which the appeal was permitted to go to a full hearing. It was on the basis that the Tribunal Chairman's response to certain questions should be elicited. There was a response to those questions which, in our judgment, made the appeal so flimsy and so manifestly based on matters of fact rather than law that for the Appellant to have pursued the appeal from that point did amount to unnecessary or unreasonable conduct. Therefore in our judgment there should be an order for costs.

[43]We reject the Respondent's submission that the order for costs should be for the entirety of their costs. We accept that it should be in respect of their costs of resisting the Appellant's appeal incurred since the date of the answer of the Tribunal Chairman to the question posed by the EAT. That is the 16 May 2007. Doing the best that we can, on information available, the order we make is that the Appellant should pay the Respondent a contribution to its costs of £2,500.