UKEAT/0233/07/MAA 1) GRATTAN PLC 2) MR M HOBBS v 1) MR M KAYAT 2) MR C COULSON AND OTHERS [2008] UKEAT 0233_07_2902

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0233_07_2902

Case No Appeal No. UKEAT/0233/07/MAA UKEAT/0234/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

UKEAT/0233/07/MAA 1) GRATTAN PLC 2) MR M HOBBSAPPELLANTS

1) MR M KAYAT 2) MR C COULSON AND OTHERSRESPONDENTS

UKEAT/0234/07/MAA MR M KAYATAPPELLANT

GRATTAN PLC AND OTHERSRESPONDENT

Before

Mr Justice Keith Mr K Edmondson

Date 29 February 2008

[1]APPEARANCES

EAT/0233/07/MAA

For Grattan Plc and Mr M Hobbs and Mr C Coulson and Others MR JOHN CAVANAGH (One of Her Majesty's Counsel) Instructed by: Messrs Eversheds LLP Solicitors Bridgewater Place Water Lane Leeds LS11 5DR For Mr M Kayat No appearance or representations by or on behalf of the Respondent

EAT/0234/07/MAA

For Mr M Kayat No appearance or representations by or on behalf of the Appellant For Grattan Plc and Others MR JOHN CAVANAGH (One of Her Majesty's Counsel) Instructed by: Messrs Eversheds LLP Solicitors Bridgewater Place Water Lane Leeds LS11 5DR SUMMARY Race discrimination – Inferring discrimination / Burden of Proof whether Tribunal erred in its approach to the shifting burden of proof – whether it was open to the Tribunal on the primary facts which it found to draw inferences of race discrimination. Unfair dismissal – Reason for dismissal including substantial other reason / Reasonableness of dismissal whether it was open to the Tribunal on the primary facts which it found to conclude that the employee had been dismissed for a reason which related to his conduct – whether, on the assumption that the employee had been dismissed for a reason which related to his capability, it was open to the Tribunal to find that a further invitation to the employee to discuss the effect of his medical condition on his future employment might have been accepted. THE HONOURABLE MR JUSTICE KEITH Introduction The first Respondent, Grattan Plc ("the company"), is a large mail order company. The Claimant, Mohammed Kayat, who is of Asian ethnic origin, was employed by the company as an assistant in its warehouse in Bradford. He started working for the company on 23 September 1974, and was dismissed from his employment on 1 March 2004 with immediate effect.

[2]Prior to his dismissal, Mr Kayat had, on 4 June 2003, presented a claim to the Employment Tribunal, alleging disability discrimination, race discrimination, victimisation, discrimination on the ground of his religion and beliefs, breach of contract, unlawful deductions from his wages, and breach of section 12 of the Employment Relations Act 1999 by subjecting him to a detriment for accompanying a fellow worker to a disciplinary hearing. Following his dismissal, Mr Kayat presented another claim to the Employment Tribunal. That was on 28 May 2004. This claim alleged that many of his previous complaints had continued since the presentation of his first claim, but he also claimed unfair dismissal. Although the company was named as the first Respondent in both of the claims, a number of individuals were also named as respondents.

[3]The two sets of claims were heard together by an Employment Tribunal at Leeds over a period of 14 days. Four of Mr Kayat's complaints of race discrimination in his first claim were upheld against the company and one of the company's employees, Martin Hobbs. The complaint of unfair dismissal in the second claim was also upheld – this time against the company alone. All Mr Kayat's other complaints were dismissed. The company and Mr Hobbs appealed against the findings of race discrimination and unfair dismissal against them. Mr Kayat did not comply with orders for the lodging of his response to their appeal, and on 6 November 2007 he was debarred from taking further part in the appeal.

[4]For his part, Mr Kayat lodged a notice of appeal in respect of those of his claims which had been dismissed. His notice of appeal included a number of allegations of bias and improper conduct on the part of the Chairman of the Tribunal. However, Mr Kayat did not comply with an order for the lodging of an affidavit setting out the details of those allegations, and on 6 November 2007 the ground in the notice of appeal containing those allegations was dismissed. Ironically, it was because of the allegations of bias and improper conduct that a preliminary hearing of Mr Kayat's appeal had been ordered, and that hearing took place when the hearing of the company's appeal took place.

[5]Mr Kayat did not attend the hearing of the company's and Mr Hobbs' appeal or the preliminary hearing of his own appeal. His non-attendance at the hearing of the company's and Mr Hobbs' appeal did not matter since he was debarred from taking further part in it. But his non-attendance at the preliminary hearing of his own appeal means that we have not had the benefit of hearing what Mr Kayat or his representative wanted to say about it. His non-attendance was not entirely unexpected. He suffers from Addison's disease, and had previously applied for both appeals to be stayed indefinitely on the ground that his ill-health was preventing him from giving them the attention they deserved. That application was dismissed since it would not be just for the appeals to be stayed indefinitely, especially as there was apparently no reason why the person who had been representing Mr Kayat could not continue to represent him at the hearing of the appeals. On the day before the hearing of the appeals, the Employment Appeal Tribunal received by fax a letter from someone who bears the same surname as Mr Kayat – and may therefore be related to him – in which concern was expressed about the mail being sent to him, which he had not been opening because he was unable to cope with the pressure of legal proceedings. But the letter did not ask for an adjournment, and in view of the reasons for refusing the stay, it would not have been appropriate to adjourn the preliminary hearing of Mr Kayat's appeal even if an adjournment had been sought. As for the company's and Mr Hobbs' appeal, no question of an adjournment could arise in view of the prohibition on Mr Kayat taking part in it. The primary facts relevant to the company's and Mr Hobbs' appeal

[6]The company's initial treatment of Mr Kayat . In 1999, Mr Kayat was diagnosed as suffering from Addison's disease. He told his section manager about that, and it was agreed that he could have regular rest breaks during the working day. A letter from the consultant endocrinologist, Dr Pacey, who was treating him, confirmed that he needed regular breaks during the day.

[7]Mr Kayat was entitled to substantial bonuses based on the number of hours he worked and the number of orders from the company's customers which he processed. In view of his illness, the hours when he was on a rest break were taken into account. The effect of that was that although he worked a shorter working day than his colleagues, he was treated as achieving a high rate of productivity, and the bonuses he earned were correspondingly higher.

[8]In 2000, the company introduced a new flexible working system which had been agreed with the recognised trade unions. It resulted in a longer working week for many employees. Employees could appeal against their inclusion in the new system, and if their appeal was successful, they would be exempted from it. Mr Kayat appealed against his inclusion in the new system. He relied on his medical condition, even though he had not obtained a further letter from Dr Pacey relating to his need to be exempted from it. His appeal was allowed. He was told that he would be exempted from having to work under the new system, but he was also told that the situation would be reviewed on a regular basis.

[9]The removal of the exemption . In 2002, the company's overall financial position worsened. It needed to reduce its costs. One of the things which it decided to consider was whether it had been too generous in the past about granting exemptions from the new flexible working system. Accordingly, it was decided to review the position of all of the employees who had been granted exemptions. That task was entrusted to Mr Hobbs, a personnel officer in the company's personnel department, though each case was to be considered by a panel established with the agreement of the unions, whose members were Mr Hobbs, a union official, David Stanley, and Colin Coulson, Mr Kayat's line manager. Mr Kayat was asked to attend a meeting with the panel on 28 January 2003. From the little Mr Hobbs knew of Addison's disease, he could not see why Mr Kayat could not work under the new flexible working system.

[10]The timing of this meeting was not ideal. Mr Kayat was due to go on a pilgrimage to Mecca – the Haj – and had booked leave between 4 February and 11 March for that purpose. But the panel wanted to get an up-to-date picture of his medical condition in the meantime to see whether it was still preventing him from being included in the new flexible working system. It therefore gave him a form to complete in which he could give his consent for the company to get in touch with his GP to obtain a report on him. The Tribunal found that he did not categorically refuse to complete the form, but said that he would not complete it until after his return from the Haj, as he wanted his pilgrimage to be stress-free. He wanted to be able to see the report from his GP before it went to the company, and he was concerned that he would not be able to do that if the report was completed while he was away. The Tribunal found that the company offered to accommodate Mr Kayat's concern about that by delaying the sending of the consent form to his GP, and ensuring that Mr Kayat would be able to see the report before it was submitted to the company. Unfortunately, Mr Kayat did not regard that assurance as sufficient. He felt that he was being put under unnecessary pressure at a time when he was preparing for the Haj, and he was still unwilling to sign the form.

[11]Mr Hobbs did not believe that simply requiring Mr Kayat to give his consent for his GP to be approached (when the company was prepared to defer making that approach) would cause Mr Kayat undue stress. He thought that Mr Kayat was simply delaying the process, and so by a letter dated 3 February he repeated the company's offer to delay the sending of the consent form to Mr Kayat's GP, and informed Mr Kayat that if Mr Kayat failed to sign the form before going away, a decision would be made in his absence on whether he should continue to be exempt from the flexible working system. That point was made to Mr Kayat at two meetings on the morning and afternoon of 3 February. The Tribunal found that this caused Mr Kayat some stress, but it also found that he had greatly overstated the level of anxiety he had experienced.

[12]Mr Kayat did not complete the consent form before going on the Haj, and consistently with the warning which Mr Hobbs had given Mr Kayat about what would happen if Mr Kayat did not complete the consent form before he left, a further meeting of the panel took place in Mr Kayat's absence without the benefit of an up-to-date medical report on him. That meeting took place on 6 February, and the convening of that meeting was the first of Mr Kayat's four complaints of race discrimination which the Tribunal upheld. Mr Kayat was represented at that meeting by John Ellis, a trade union representative. He had not obtained Mr Kayat's consent to attend the meeting, let alone to represent him, and he had no specific instructions from Mr Kayat. He did not object to the meeting going ahead, and the Tribunal noted that in the circumstances it was hardly surprising that the meeting proceeded.

[13]The only medical report which the panel had on Mr Kayat was the one from Dr Pacey a few years earlier which had merely said that Mr Kayat needed regular breaks during the day. Mr Hobbs noted that an up-to-date medical report had been required, but that in view of Mr Kayat's failure to give his consent for one to be obtained, the decision was being made on the basis of such medical information as was available. Since the report from Dr Pacey did not say that Mr Kayat could not work under the new flexible working system, it was decided that he would be required to work under the new system on Mondays to Thursdays, but not on Fridays. Mr Hobbs wrote to Mr Kayat on 10 February informing him of that, making the point that Mr Kayat would be required to work under the new system until "further information substantiating [his] claim for continuing exemption" had been received. The decision at this meeting to withdraw Mr Kayat's exemption from working under the new system was the second of Mr Kayat's four complaints of race discrimination which the Tribunal upheld.

[14]The Tribunal made three comments on this meeting and the letter which followed it. First, the Tribunal commented that it might have been thought that the company would not alter the status quo until an up-to-date medical report had been obtained. Secondly, the Tribunal was not persuaded that Mr Kayat would have understood that he could have appealed against the loss of his exemption. That may be so, but on the face of it Mr Kayat should have realised that if he provided the company with an up-to-date medical report which said that his condition was such that he could not work under the new system, his exemption would be restored. Thirdly, the letter referred to Mr Kayat having to return to "normal working" when he came back from the Haj, and the Tribunal found that as a result Mr Kayat thought that his regular rest breaks had been withdrawn as well.

[15]Mr Kayat's ill-health in 2003 . When Mr Kayat returned from the Haj, he saw Mr Hobbs' letter of 10 February. He was distressed by it, and sent in a certificate from his GP, Dr Smith, which said that he was unable to work as a result of "depression – work related stress". From then on, the question was not so much whether Mr Kayat could work under the new flexible working system, but whether he could return to work at all. On receiving that letter, Mr Hobbs wrote to Mr Kayat. That was on 18 March. In his letter, he referred to the fact that Mr Kayat's illness was said to be work-related, and he stated that the company needed to know the factors which had contributed to Mr Kayat's ill-health, so that the company could try to eliminate them and help Mr Kayat return to work. He wanted Mr Kayat to see the company doctor, and he asked Mr Kayat to telephone him by 24 March so that an appropriate appointment could be made. He warned Mr Kayat that a failure to do so might result in his sick pay being withdrawn.

[16]The Tribunal said in para. 45 of its reasons that it had not seen any documentary evidence which permitted the company to require Mr Kayat to see the company doctor, but(a) the relevant procedure was before the Tribunal (indeed, the Tribunal referred to it in para. 93 of its reasons), and

(b) Mr Hobbs' letter to Mr Kayat of 18 March said that a copy of the procedure was enclosed with it. The relevant procedure was the company's Guide to Attendance Procedures, and the relevant paragraph read: "The Company reserves the right to request a medical report or refer an employee for medical examination at any stage during the attendance procedures. You will lose your Company Sick Pay if you refuse to co-operate with any such request …" (Our emphasis) The decision to require Mr Kayat to be examined by the company doctor was the third of Mr Kayat's four complaints of race discrimination which the Tribunal upheld.

[17]Mr Hobbs gave evidence about why he required Mr Kayat to see the company doctor so soon after the onset of his illness, and when he had been absent from work for only a week. His explanation was that people suffering from stress do not get any better by staying at home, and that he believed that the quicker Mr Kayat saw the company doctor, the better it would be. The Tribunal also noted that that had been Mr Hobbs' explanation for threatening to withdraw Mr Kayat's sick pay.

[18]Mr Kayat did not respond to Mr Hobbs' letter of 18 March or telephone him to make an appointment to see the company doctor. Accordingly, Mr Hobbs wrote to Mr Kayat again. That was on 25 March. He asked Mr Kayat to contact him by 28 March about making an appointment to see the company doctor, and told him that his sick pay would be withdrawn with effect from 31 March if he did not do so. Mr Kayat did not respond to that letter either or contact Mr Hobbs, and accordingly on 1 April Mr Hobbs wrote to him informing him that he had instructed the payroll department to withdraw his entitlement to sick pay until further notice, though he was also told that his sick pay could be reinstated if he contacted Mr Hobbs to arrange an appointment with the company doctor. The decision to withdraw Mr Kayat's sick pay was the fourth of Mr Kayat's four complaints of race discrimination which the Tribunal upheld.

[19]At some stage, the company had received a letter dated 18 March from Mr Kayat's GP which confirmed that Mr Kayat still needed regular rest breaks while at work, and which added that the exemption from working under the new flexible working system should continue to apply. However, the letter did not state what it was about Addison's disease which prevented Mr Kayat from working under the new system, or what it was about the new system which would have an adverse impact on Mr Kayat's health.

[20]Further correspondence took place following Mr Hobbs' letter of 1 April, and Mr Kayat was seen at his home by his section manager on 22 May and by his team leader on 12 August. On the latter occasion, he was provided with the same form which he had been given at the meeting on 28 January. Eventually, he completed it, dating it 19 September and naming Dr Bavington, who was in the same practice as Dr Smith, as his GP. The company forwarded the form to Dr Bavington on 23 September, with a request that he provide a medical report on Mr Kayat.

[21]By then, Mr Kayat had presented his first claim to the Employment Tribunal, and in support of his application that the claim be stayed he asked Dr Bavington to provide a report. Dr Bavington did so on 13 October. The Tribunal criticised both Mr Kayat and the company about that report. It criticised Mr Kayat for not realising that the report had been prepared for that purpose. It criticised the company for ignoring what the report might have had to say about Mr Kayat's medical condition. In fact, Dr Bavington did not provide the company with a medical report on Mr Kayat pursuant to its request for one, and on 15 December one of the company's personnel officers, Debbie Oddy, telephoned his surgery to find out what had happened. She was told that the surgery was short-staffed, that Dr Bavington was off sick, and that the completion of the report was not regarded as a priority. She chased up the report on 23 December.

[22]By the beginning of 2004, therefore, the position was that Mr Kayat had still not returned to work. He had not received sick pay from the company since 1 April 2003, and his statutory sick pay had come to an end in September 2003. He had not made an appointment to see the company doctor, nor had the company received a response to its request for an up-to-date medical report from his GP – whether the request made just before Mr Kayat went on the Haj relating to his ability to work under the new flexible working scheme, or the request made in August 2003 relating to his ability to return to work at all. The company was not concerned about the absence of a report from his GP if Mr Kayat had been prepared to see the company doctor. Indeed, on 25 November 2003, the company had written to him to confirm that, for the avoidance of doubt, his sick pay would be reinstated if he agreed to see the company doctor.

[23]The events leading up to Mr Kayat's dismissal . On 8 January 2004, Ms Oddy wrote to Mr Kayat. She said that the company was sympathetic about his prolonged bout of ill-health, but that it wanted to make a decision on his future employment with the company. Although no report on Mr Kayat had been prepared by his GP, she informed Mr Kayat that the receptionist at Dr Bavington's surgery had said that "all information" had been passed to Mr Kayat. Accordingly, Ms Oddy asked him to provide the company with such information about him which was relevant to his continued absence from work – in the absence of which Mr Kayat was warned that any decision about his future would have to be made on the information that the company currently had.

[24]There then followed some correspondence about Mr Kayat's entitlement to incapacity benefit, statutory sick pay and other financial matters including his pension entitlement, but in a letter dated 26 January – this time from Dawn Hardcastle, the company's operations manager in the personnel department – the company again requested the information about Mr Kayat's current medical condition which it had previously requested. That letter too reminded Mr Kayat that in the absence of that information any decision on his future employment could only be based on the information which the company currently had.

[25]On 2 February, Ms Oddy again spoke to the receptionist at Dr Bavington's surgery. She confirmed that a report had still not been prepared on Mr Kayat, and she expressed surprise that it was taking so long for one to be prepared. The Tribunal noted that the receptionist confirmed that "the report was logged on the system", which we assume meant that the system was acknowledging that a report had indeed been requested. In the light of that, Ms Hardcastle wrote to Mr Kayat the same day. She answered the various queries which had been raised in the recent correspondence about financial matters. She then turned to his continuing absence from work, and wrote as follows:

"I would now like to turn to the issue of your ongoing absence from the Company and the next steps we must take. We have repeatedly asked both you and your GP for information to help us help you with your health problems. Many months after our first request, we still have no information from your GP concerning a timescale for your return to work. You have refused to visit the company doctor. You have been off for approaching one year. In the ordinary course, we would by now have terminated your employment. However, in view of the difficulties between us we have if anything treated you more favourably than we would have treated any other employee, save one who is terminally ill. Unless we receive some information concerning your health situation on or before Friday 13 February 2004 we will take a decision concerning your continued employment without further recourse to yourself. If the problem rests with your GP, please take this letter to him as soon as possible. I implore either you or your GP to contact me before 13 February 2004 failing which a decision to terminate your employment is likely to be taken."

The Tribunal highlighted the unusually strong language – "I implore" – used by Ms Hardcastle.

[26]That letter crossed with one sent on Mr Kayat's behalf which purported to be a response to Ms Oddy's letter of 8 January. It asked a number of questions about Ms Oddy's right to seek further medical information about Mr Kayat, and referred to the occasions when the company had been provided with medical reports or certificates about Mr Kayat. But the Tribunal described the letter as "entirely and conspicuously fail[ing] to deal" with the current issue, which related to an up-to-date "report from Dr Bavington to which consent had been given in September 2003".

[27]On 12 February, Dr Bavington wrote to Ms Oddy. He wanted to explain what his receptionist had meant when she had told Ms Oddy that "all reports/correspondence" had been passed to Mr Kayat. She had been referring to such reports and correspondence as related to the claim which Mr Kayat had presented to the Employment Tribunal. She had not been referring to any report prepared as a result of the request for a medical report on Mr Kayat sent to Dr Bavington on 23 September 2003. Dr Bavington was unable to explain why that request had not been complied with. He assumed that it must have been overlooked at the time.

[28]That, no doubt, was why the next letter which the company sent to Mr Kayat – a letter from Ms Oddy dated 13 February – extended the deadline which had been set out in Ms Hardcastle's letter of 2 February. The deadline for providing information about the current state of his health and the likelihood of his return to work in the near future was extended from 13 February to 20 February, and Ms Oddy in her letter reproduced the language of Ms Hardcastle's letter of 2 February. It ended up:

"If the problem rests with your GP please take this letter to him, along with our original request for information as attached as soon as possible. I implore either you or your GP to contact me before 20 February 2004 failing which a decision to terminate your employment is likely to be taken."

[29]On 17 February, the company received an invoice – dated 5 February – from Dr Bavington for preparing a medical report on Mr Kayat. Since no such report had been received, Ms Oddy telephoned his surgery. She was told by his receptionist to ignore the invoice since Mr Kayat had said that no report should be sent to the company. The Tribunal found that Mr Kayat had indeed given Dr Bavington such an instruction.

[30]Mr Kayat did not respond to the company's entreaties of 2 February and 13 February for information about the current state of his health. Instead, he wrote to Norman Finnigan, the company's Director of Personnel, on 18 February complaining about what he described as the "very unsympathetic and threatening approach" to his particular circumstances which Ms Hardcastle and Ms Oddy had adopted. In addition to raising other concerns, he asked for an investigation into their conduct. The only thing he said which was relevant to the company's request for information about the current state of his health was that he was due to see Dr Bavington at the end of March, and that a report would be forwarded in due course. The Tribunal noted that that contradicted Mr Kayat's evidence in the Tribunal, which was that he had seen Dr Bavington on 12 February and had done everything possible on that occasion to request a report from Dr Bavington. The Tribunal did not accept this part of Mr Kayat's evidence.

[31]Since Mr Kayat had not complied with the extended deadline of 20 February, the company had to decide what to do about his continuing absence from work. A meeting took place to discuss it, attended by Ms Hardcastle, Ms Oddy and Ken McDonald, the manager of the department in which Mr Kayat worked. The Tribunal described the meeting as a disciplinary meeting, and we shall return to that later. Mr Kayat was not invited to it. Those attending the meeting – which took place on 23 February – did not know about Mr Kayat's letter to Mr Finnigan of 18 February, since Mr Finnigan was based at the company's head office, which was in a different part of Bradford from the office where the meeting took place, and the letter did not arrive until 23 February.

[32]Ms Hardcastle made a note of the meeting. The Tribunal found that it was an accurate note of what had been discussed. It was noted that Mr Kayat's deadline for sending the company information about the current state of his health had been extended from 13 February to 20 February, but that that date had passed without the information being provided. The discussion focused on the length of time Mr Kayat had been off sick, the company's inability to obtain information from his GP despite numerous calls to the surgery, and the absence of any prognosis about when Mr Kayat was likely to be able to return to work. They also discussed whether there had been any similar cases within the company. Eventually, it was decided that the company had only two realistic options: either to dismiss Mr Kayat or to allow his absence to continue outside the terms of the company's Guide to Attendance Procedures. That provided as follows:

"After 6 months continuous absence, medical severance will automatically be considered if not already addressed, and the Company will seek to enter into compromise agreements. Only in the most exceptional circumstances will absence in excess of 12 months be allowed."

It was decided that the circumstances of Mr Kayat's absence from work did not justify what the Tribunal referred to as "a precedent" being set, and accordingly the decision was made that Mr Kayat should be dismissed. He was notified of that by a letter dated 1 March, and paid 12 weeks' salary in lieu of the notice to which he was entitled. He was told of his right of appeal against the decision to dismiss him, but he did not exercise that right.

[33]The Tribunal's other findings of fact . Before looking at how the Tribunal reached its conclusion that the company had discriminated against Mr Kayat on the grounds of his race, and had dismissed him unfairly, some of the Tribunal's other findings should be noted. First, Mr Kayat had not been subjected to any discrimination during his 29 years with the company before February 2003. Indeed, apart from the four complaints of race discrimination which the Tribunal upheld, the Tribunal dismissed the very many complaints of discrimination which Mr Kayat had made. Secondly, he had been treated more favourably than other employees in a number of respects. He had been permitted to finish work early on Fridays. The hours when he was on a rest break had been taken into account in his favour in determining his productivity. And he had been treated far more favourably than other members of staff in connection with the calculation of his pay during the fuel crisis in September 2000. Thirdly, the Tribunal expressly found that there had been nothing discriminatory in requiring Mr Kayat shortly before he went on the Haj to sign a form giving the company consent to approach his doctor. The Tribunal accepted the company's explanation that it wished to press on with the review of the exemptions from working under the new flexible working system, and it noted how the company had offered to accommodate Mr Kayat's understandable wish to see the report from his GP before it was sent to the company. It will be necessary to return to this finding again. Finally, in para. 74 of its reasons, the Tribunal noted that the evidence from the company's witnesses had been that no-one apart from Mr Kayat had ever refused to give their consent for their doctor to be approached for a medical report. Indeed, Mr John Cavanagh QC for the company told us that the evidence had gone even further than that, namely that no-one had ever refused to agree to being examined by the company doctor. The Tribunal did not say that it did not accept that evidence. The complaints of race discrimination

[34]The law . It is not possible to understand the Tribunal's reasons for upholding the four complaints of race discrimination without an appreciation of the law which the Tribunal had to apply in relation to the burden of proof and the drawing of inferences in cases of alleged discrimination. As for the burden of proof, the Tribunal accepted Mr Cavanagh's concession that even though section 54A of the Race Relations Act 1976 ("the 1976 Act") had come into force after the relevant events in this case had taken place, it nevertheless applied to the present case since the hearing was taking place after it had come into force. Accordingly, if Mr Kayat proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the company had discriminated against him, the Tribunal had to uphold any complaint of discrimination unless the company proved that it had not discriminated against him.

[35]Guidance on how this shifting burden of proof works – and the two stages of the analysis which are involved – was given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

. The first stage in the analysis was for the Tribunal to decide whether Mr Kayat had proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the company had discriminated against him. The outcome at that stage of the analysis would depend on what inferences the Tribunal could have drawn from the primary facts found by it, on the assumption that there had been no adequate explanation for those facts. In Laing v Manchester City Council

[2006] ICR 1519

, the Employment Appeal Tribunal (Elias P presiding) held that the primary facts which the Tribunal should be addressing at this stage in the analysis were not limited to the facts relied on by the Claimant. The Court of Appeal in Madarassy v Nomura International Plc

[2007] ICR 867

at [69] agreed with that. Accordingly, the Tribunal in this case had to take into account the primary facts relied on by the company as well.

[36]Subsequent cases have added two things to that. First, in Madarassy itself – in which judgment was handed down after the Tribunal had reserved judgment in the present case but some weeks before its decision was promulgated – the Court of Appeal held at [57] that, subject to the assumption that the Tribunal had to make about the absence of an adequate explanation for the treatment of the Claimant, the evidence which the Tribunal would need to consider at the first stage of its analysis was all the evidence relevant to the complaint of discrimination, including "all the evidence of the reasons for the differential treatment". Thus, if Mr Kayat had been treated differently from his chosen comparator (whether an actual or a hypothetical one), such evidence as the company gave for the reasons for such differential treatment should be considered at the first stage of the analysis as well as the second. Secondly, in Madarassy , the Court of Appeal held at [56] that the burden of proof did not shift simply because the Claimant had been treated differently from someone of the opposite sex or of a different racial or ethnic origin. As Mummery LJ said, "[t]he bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination". They do not, without more, provide a sufficient basis on which a Tribunal could properly conclude that a Claimant had been treated less favourably than other comparable employees because of his race .

[37]If Mr Kayat proved facts from which the conclusion could be drawn that he had been treated less favourably than other comparable employees because of his race, then the burden of proof shifted to the company to prove that it had not discriminated against him. That was the second stage of the analysis. To discharge that burden, the company had to satisfy the Tribunal, on the balance of probabilities, what the explanation for its treatment of Mr Kayat had been, and that that explanation had had nothing to do with his race, though since the facts necessary to prove that explanation would usually be in the possession of the Respondent to a complaint of race discrimination, the Tribunal would normally expect cogent evidence to discharge that burden of proof. In Madarassy , the Court of Appeal held at [58] that the absence of an adequate explanation for the treatment of the Claimant only becomes relevant at this stage of the analysis.

[38]However, in Laing , the Employment Appeal Tribunal warned Employment Tribunals not to approach these questions too mechanistically. At [75], it said:

"The focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed as he did and it has nothing to do with race'."

In Madarassy , the Court of Appeal at [81] described the discussion in Laing of those cases in which the Tribunal could go straight to the second stage of the analysis as "valuable".

[39]We turn to the drawing of inferences in cases of alleged discrimination. The leading case in this area is The Law Society v Bahl

[2003] IRLR 640

. The Employment Appeal Tribunal (Elias J (as he then was) presiding) held at [94] that the mere fact that a Claimant had been treated unreasonably could not lead to an inference that the treatment had been on racial grounds. But as the Employment Appeal Tribunal went on to say at [100] and [101], where the alleged discriminator has acted unreasonably, the Tribunal will want to know why. It will be all the more incumbent on the alleged discriminator to give a comprehensive and credible explanation for the treatment of the Claimant. In such a case, the Tribunal will more readily reject that explanation if the treatment of the Claimant has been unreasonable. But if the alleged discriminator's non-discriminatory explanation for the treatment of the Claimant is convincing – in the sense that it was honestly given – it is likely to be a full answer to any claim of discrimination. When Bahl got to the Court of Appeal –

[2004] IRLR 800

– the Court approved at [101] what it described as the Employment Appeal Tribunal's "impressive analysis" of the issue.

[40]The Tribunal did not spell out the guidance which it got from these authorities on the burden of proof and the drawing of inferences in cases of discrimination. But it adopted the submissions which Mr Cavanagh had made about their effect, which we have summarised in the preceding paragraphs, though no submission, of course, was advanced on the effect of Madarassy . It also adopted what he had had to say about discrimination generally – which was that the critical issue was whether Mr Kayat had been treated less favourably than other comparable employees because of his race . In that connection, the Tribunal's search for an appropriate comparator had to reflect the requirements of section 3(4) of the 1976 Act, which required Mr Kayat's treatment to be compared with that of a person of a different racial group whose relevant circumstances were the same as his, or at least not materially different from his.

[41]The requirement on Mr Kayat to sign the consent form . Against that background, we turn to the Tribunal's reasons for upholding the four complaints of race discrimination, though by way of preface it is instructive to see how the Tribunal dealt with the complaint that Mr Kayat had been discriminated against shortly before he went on the Haj when he was required to sign the form giving the company permission to approach his GP for a medical report. The Tribunal found that the burden of proof here had shifted to the company, but it accepted the non-discriminatory explanation which the company had given for this requirement. As for the basis on which the Tribunal found that the burden of proof had shifted to the company, the Tribunal said in para. 83 of its reasons:

"… there was less favourable treatment by comparison to a hypothetical white employee who had, as [Mr Kayat] believed, valid reason to postpone the process of obtaining the medical report. Further, [Mr Kayat] has here proved facts from which the Tribunal could conclude that there was an act of discrimination. There is a clear connection between the relevant treatment and [Mr Kayat's] race."

[42]There are two aspects of that passage which trouble us. The first relates to the hypothetical white employee with whose treatment the treatment of Mr Kayat was being compared. The hypothetical white employee whose treatment the Tribunal compared the treatment of Mr Kayat with was one who was about to go on holiday and who thought that he had a valid reason for putting off signing the form giving the company permission to approach his doctor for a medical report until his return to work. The flaw in that approach, in our view, is that it ignores a crucial factor on which the Tribunal made an express finding of primary fact – which was that, although Mr Kayat may have thought that he had a valid reason for postponing his signing of the form, the company did not agree. The Tribunal found that Mr Hobbs believed that Mr Kayat did not have a good reason for putting off his signing of the form. Accordingly, the hypothetical white employee whose treatment the Tribunal should have compared the treatment of Mr Kayat with was one who the company thought had not had a good reason for postponing his signing of the form, even if such an employee himself thought that he was justified in putting it off until he returned from holiday. Had the Tribunal compared the treatment of Mr Kayat with how the company would have treated such an employee, we do not think that the Tribunal would have thought that there was any basis for saying that an inference could be drawn that they would have been treated differently, let alone treated differently on the grounds of their race.

[43]Our second concern relates to the Tribunal's finding that there was "a clear connection" between Mr Kayat's treatment and his race. We make three comments about that. First, it is dangerous to use words like that as a substitute for the statutory language because it leaves the Tribunal open to the criticism it did not apply the statutory test. In this case, the danger was that the Tribunal might have lost sight of the fact that the issue was not only whether the treatment of Mr Kayat had been on the grounds of his race, but also whether he had been treated less favourably than a comparable white employee. Secondly, the Tribunal did not spell out what that connection was. We cannot think what else the Tribunal could have had in mind apart from the facts that(a) the reason why Mr Kayat had booked leave at that time was because he wanted to go on the Haj, and

(b) the reason why Mr Kayat was not prepared to sign the form before he went on the Haj was because he did not want to be put under unnecessary pressure at a time when he was preparing for the Haj. If that was what the Tribunal had in mind when it said that there was a clear connection between Mr Kayat's treatment and his race, that rather begged one of the questions which the Tribunal had to decide in the first stage of the analysis, which was whether an inference could be drawn that the requirement that he sign the form before he went on the Haj was because he was a Muslim who was justifying his refusal to sign the form on the basis that he was about to go on the Haj. Thirdly, even if such an inference could be drawn, it is difficult to see how Mr Kayat's treatment was on account of his race , since the Tribunal had – in para. 78 of its reasons – expressly disavowed any suggestion that Muslims were a racial group.

[44]The convening of the meeting on 6 February . The Tribunal upheld Mr Kayat's complaint that the convening of the meeting on 6 February amounted to the discrimination of him by the company and Mr Hobbs on the grounds of his race. In paras. 84 and 85 of its reasons, the Tribunal explained why in its view the burden of proof on the issue had shifted to the company. The Tribunal said:

"84. We have no difficulty in concluding that there was less favourable treatment by comparison to the white hypothetical comparator cited in the preceding paragraph. Again, analysing these matters pursuant to the relevant guidance, we have no difficulty in concluding that [Mr Kayat] has proved facts from which the Tribunal could conclude that there was an act of discrimination which is unlawful. In particular, [Mr Kayat] has satisfied us (there being no real argument to the contrary) that the [company] proceeded to the review within three days of [Mr Kayat] leaving work, notwithstanding that [Mr Kayat] had no notice whatsoever of the relevant meeting. The relevant letter from Mr Hobbs simply says that: 'A decision on your flexible working extension will be made in your absence should you fail to sign the consent form today.' 85. That meeting duly took place on 6 February 2003. In evidence, it was clear that the attitude of the [company's] management (and of Mr Ellis) was that this was no different from a situation which occurs frequently in our experience, when an employee fails to attend at a meeting of which he has had due notice. We can well understand why an employer would take the approach that it should proceed as it thought fit in those latter circumstances. In our view, there is, however, all the difference in the world between deliberately failing to attend at a meeting of which proper notice has been given, on the one hand, and failing to attend a meeting of which no notice whatsoever has been given, when the employee in question is some 4,000 miles away, on the other hand. None of the [company's] relevant Managers or his trade union representatives seem to have grasped that distinction."

The reference to "the white hypothetical comparator cited in the previous paragraph" was a reference to the comparator the Tribunal identified when considering the requirement on Mr Kayat to sign the consent form.

[45]In our view, this passage contains a number of errors on the part of the Tribunal. For the reasons we have already given, the Tribunal did not identify all the characteristics which the appropriate hypothetical comparator for Mr Kayat should have if like was to be compared with like. It was that which led the Tribunal to place far too much weight on Mr Kayat not having been told that the meeting was to take place on 6 February, and on Mr Kayat's absence from the UK at the time. What the Tribunal completely ignored was its earlier finding that Mr Hobbs had believed that Mr Kayat had not had a good reason for putting off the signing of the form, and that had he signed the form, the meeting would not have taken place until Mr Kayat had returned from the Haj, and after he had had an opportunity to consider the medical report which would have been prepared on him and which would not have been sent to the company until he had had a chance to consider it. The issue was not so much his failure to attend a meeting of which he had no notice, but his failure to comply with the company's requirement when, had he complied with it, the meeting would not have gone ahead at all. Once the hypothetical white comparator is regarded as someone who the company thought had unreasonably failed to take the steps which would have resulted in the meeting not going ahead, it is, in our view, not possible to see why he might have been treated any more favourably than Mr Kayat. That completely undermines the Tribunal's finding that Mr Kayat had "proved facts from which the Tribunal could conclude" that there had been an unlawful act of discrimination.

[46]The Tribunal did not spell out what those facts were apart from what followed, and the facts which followed were only that the meeting had taken place on a date when Mr Kayat could not be told about the meeting and could not attend it since he was abroad at the time. That the meeting went ahead when it did should not have come as any surprise to Mr Kayat, since Mr Hobbs' letter of 3 February had informed him that a decision would be made in his absence about whether he should continue to be exempt from the flexible working system if he failed to sign the form before going away. If the Tribunal had considered those facts in the context of, and by comparison with, a white employee who had booked a long holiday some time previously, but who had in the company's view acted unreasonably in refusing to sign a form giving the company permission to ask his GP for a medical report before he went on holiday, the Tribunal could not, we think, have concluded that there could have been a discriminatory reason for convening the meeting in Mr Kayat's absence when there was an obvious, non-discriminatory one – namely that he had refused to comply with the company's requirement that he sign the consent form – the consequence of which was to delay the possibility of the withdrawal of the exemption – just as there had been, as the Tribunal found, a non-discriminatory reason in the first place for requiring Mr Kayat to sign the consent form before he went on the Haj. For these reasons, we have concluded that it was not open to the Tribunal to conclude that the burden of proof had shifted to the company.

[47]Having concluded that the burden of proof had shifted to the company, the Tribunal then proceeded to consider whether the company had proved that there had been a non-discriminatory reason for convening the meeting when it did. The Tribunal's reasons for concluding that the company had not proved that are set out in para. 86 of its reasons:

"… we then considered the [company's] explanation for dealing with the matter at that time and in such haste. The pleaded explanation – and that on which Mr Cavanagh QC relies – is that too many exemptions had been granted and there was, therefore, a need to remove the exemptions as soon as possible. We note that the [company's] original intention was that the report would be obtained during the currency of [Mr Kayat's] absence. It was not to be requested until 24 February 2003. Assuming it was then obtained within the six to eight week period mentioned, it would be available to the [company] in the middle of April 2003 at the earliest. There would then be some type of meeting to consider the report, and it is highly unlikely that anything would happen in respect of the exemption until the middle of May 2003. What happened here is that the exemption was withdrawn in early March 2003, and on the basis, as explained by the [company's] witnesses, that [Mr Kayat] had not attended a meeting of which he had no notice. We have concluded that the [company] has not provided an adequate explanation as to why this meeting had to take place at that time and in those circumstances."

[48]In our view, the Tribunal misunderstood the explanation which the company was advancing for proceeding with the meeting when it did. Its explanation was not simply that it wanted to proceed with the review of the exemptions as soon as possible. Undoubtedly, the company wanted to proceed with the review of the exemptions as soon as possible, but it recognised that where the continuation of the withdrawal of an exemption depended on the employee's medical condition, an up-to-date assessment of their condition was needed. That was why it wanted an up-to-date report on Mr Kayat from his GP. It wanted to get Mr Kayat's consent before he went on the Haj to approach his GP so that there would not be any unnecessary delay in getting that report. But the reason the company gave for proceeding with the meeting was not so much because the company wanted to get on with deciding whether Mr Kayat should continue to enjoy the exemption from working under the flexible working system, but rather because Mr Kayat had refused to co-operate with the company's request that he sign the consent form before going on the Haj, and it was not considered right that Mr Kayat should be able to choose the time when the company got a medical report from his GP. It was the significant element of obstructiveness – if not defiance – on Mr Kayat's part in not complying with the company's request which the company regarded as significant, as well as Mr Hobbs' belief that Mr Kayat should not be dictating to the company that the company would only get his consent to it approaching his GP when he felt like giving it. Indeed, as the Tribunal found in para. 41 of its reasons, the reason why Mr Kayat was told that a decision on the withdrawal of his exemption would be made in his absence if he did not sign the form before going on the Haj was because that would be seen as an attempt by Mr Kayat "to delay the process, which [Mr Hobbs] could not allow". The Tribunal's failure to take on board the company's real explanation for convening the meeting when it did means that its conclusion that the company had failed to prove a non-discriminatory reason for Mr Kayat's treatment has to be regarded as flawed. Had the Tribunal properly understood the company's explanation for convening the meeting, the only reasonable conclusion which it could have reached was that the reason for convening it had been a non-discriminatory one.

[49]For these reasons, the Tribunal's finding that the company and Mr Hobbs discriminated against Mr Kayat on the grounds of his race by convening the meeting on 6 February has to be set aside.

[50]The decision to withdraw Mr Kayat's exemption from working under the flexible working system . The Tribunal upheld Mr Kayat's complaint that the decision which was reached at the meeting on 6 February to withdraw his exemption from working under the flexible working system amounted to the discrimination of him by the company and Mr Hobbs on the grounds of his race. Unlike the decision to convene the meeting – which the Tribunal could properly treat as a decision made by Mr Hobbs rather than by the panel as a whole – the decision to withdraw Mr Kayat's exemption was made by the panel. Mr Hobbs was not the only member of the panel who Mr Kayat named as an individual Respondent. He named Mr Coulson as well. The Tribunal decided not to make a finding of race discrimination against Mr Coulson in view of "his very limited involvements" [ sic ]. We are uncertain what legal principle the Tribunal was applying here. Provided that Mr Coulson was a party to the decision which constituted the act of discrimination – and as a member of the panel who made that decision, he must have been a party to it – we have not been able to discern any legal basis for distinguishing him from Mr Hobbs.

[51]One might have expected the finding that the convening of the meeting on 6 February amounted to the discrimination of Mr Kayat on the grounds of his race to have automatically resulted in a finding that the decision made at that meeting to withdraw the exemption from him amounted to the discrimination of him on the grounds of his race. After all, when it was decided to convene the meeting for 6 February, it was known that Mr Kayat would not be coming to it, and that the panel would not have an up-to-date medical report on him. In the absence of an up-to-date medical report on him – in the context of the absence of any previous medical report addressing his ability to work under the flexible working system – the outcome of any meeting convened for 6 February was inevitable.

[52]But the Tribunal did not see things in that way. Even if the convening of the meeting on 6 February had amounted to the discrimination of Mr Kayat on the grounds of his race, it did not follow, in the Tribunal's view, that the decision made at that meeting – however inevitable it must have appeared when the decision to convene that meeting on 6 February had been made – would also amount to the discrimination of Mr Kayat on the grounds of his race. That was because the Tribunal inferred that the reason for the decision to withdraw Mr Kayat's exemption was not so much because the company had no medical evidence supporting his continued exemption, but rather because Mr Kayat had unreasonably refused to co-operate with the company's attempts to obtain an up-to-date medical report on his condition. The Tribunal noted in para. 87 of its reasons that in answer to a question from the Tribunal Mr Hobbs had specifically said that the decision to withdraw the exemption had been made because Mr Hobbs had thought that it had been unreasonable for Mr Kayat to refuse to sign the consent form before he went on the Haj. The Tribunal concluded that Mr Kayat's "perceived lack of co-operation could not, on any basis, be a proper factor to be relied upon" to withdraw the exemption from him.

[53]The inference that it was Mr Kayat's lack of co-operation which was the reason for the withdrawal of the exemption was critical to the Tribunal's conclusion. The Tribunal expressly recognised that if the information available to the company at the meeting had been "insufficient to allow [Mr Kayat] to continue to benefit from the exemption", it would have been "entirely" open to the company to conclude that the exemption should be withdrawn.

[54]In our view, the Tribunal's inference that it was Mr Kayat's lack of co-operation which was the reason for the withdrawal of the exemption ignored a critical component in the process. The consequence of Mr Kayat's refusal to co-operate with the company's attempts to obtain an up-to-date medical report on his condition was that the company did not have any medical evidence supporting his continued exemption. Accordingly, when Mr Hobbs was saying that the decision was made to withdraw the exemption because of Mr Kayat's refusal to co-operate with the company, he was doing no more than pointing out that it was that refusal to co-operate which had resulted in the company not having the evidence it needed for the exemption to continue to apply to Mr Kayat. It was illogical for the Tribunal to say, on the one hand, that it would have been legitimate to withdraw the exemption if there had been no medical evidence to support its continuance, and to conclude, on the other, that it had not been legitimate to withdraw it because of Mr Kayat's refusal to co-operate with the company when it was that refusal which had resulted in the absence of that medical evidence.

[55]In para. 88 of its reasons, the Tribunal said that it had not received a "sufficient explanation" as to why Mr Kayat "could not have been shunted to the end of the review process and some other employee promoted to his place in the pecking order". The Tribunal commented that the company would not have suffered any financial loss if that had been done. We do not know whether the Tribunal was saying that it had not received any explanation at all for why the company had not done that, or whether the Tribunal was saying that such explanation as it had received was not sufficient. If the Tribunal was saying the former, it was wrong: the company's explanation for not doing that was that it did not think that it had been right for Mr Kayat to dictate when he was going to sign the consent form, and accordingly when the decision would be made about whether he could continue to benefit from the exemption. If the Tribunal was saying the latter, it did not spell out why that explanation was not "sufficient".

[56]But in the final analysis, the most compelling criticism of the Tribunal is that it determined the issue of whether Mr Kayat had been discriminated against on the grounds of his race on the basis that Mr Hobbs had acted unreasonably in allowing himself to be influenced by his belief that Mr Kayat had refused to co-operate with the company's attempts to obtain an up-to-date medical report on him. What the Tribunal completely failed to address was whether Mr Hobbs' non-discriminatory explanation for the panel's decision to withdraw the exemption was true. The fact that, contrary to our view, it regarded the decision as unreasonable only meant that the company had to do more to convince the Tribunal that the explanation was true. We have no doubt that had the Tribunal focused on the consequence of Mr Kayat's refusal to co-operate with the company's attempts to get an up-to-date report on his medical condition, it would have had little alternative but to find that there had indeed been a non-discriminatory reason for withdrawing Mr Kayat's exemption.

[57]For these reasons, the Tribunal's finding that the company and Mr Hobbs discriminated against Mr Kayat on the grounds of his race by deciding at the meeting on 6 February that he was no longer entitled to the exemption from working under the flexible working system has to be set aside.

[58]The decision to require Mr Kayat to be examined by the company doctor . It will be recalled that Mr Hobbs' explanation for requiring Mr Kayat to see the company doctor so soon after the onset of his illness and when he had been absent from work for only a week was that he did not think that people suffering from stress got any better by staying at home, and the quicker Mr Kayat saw the company doctor the better it would be. What the Tribunal said about that explanation in para. 92 of its reasons was this:

"[Mr Hobbs] contended that, in those circumstances, it was the [company's] standard practice to refer the employee in question to the company doctor at that very early stage. None of the witnesses called on behalf of [Mr Kayat] had any knowledge that any such practice existed or that any such process had been followed in respect of white employees absent from work in similar circumstances. The [company] did not produce any evidence of comparable treatment of a white employee. We conclude therefore that this amounted to less favourable treatment by comparison to a white employee absent from work for such a short period and for a similar reason."

It was on that basis that the Tribunal concluded that Mr Kayat had proved facts from which the Tribunal could conclude that the company had discriminated against him.

[59]The aspect of that passage which troubles us relates to the hypothetical white employee with whose treatment the treatment of Mr Kayat was being compared. The hypothetical white employee whose treatment the Tribunal compared the treatment of Mr Kayat with was one who had been absent from work for a short period suffering from stress. The flaw in that approach, in our view, was that the Tribunal failed to compare like with like. The onset of Mr Kayat's stress had occurred shortly after he had been on five weeks leave, during which he had been fit enough to undertake a long and arduous pilgrimage – that leave having itself taken place shortly after Mr Kayat had refused to sign a consent form permitting the company to request an up-to-date medical report from his GP for reasons which the company had not regarded as persuasive. We do not believe that Mr Kayat's case can fairly have been compared with an employee who was absent from work as a result of stress but whose case did not have those additional features.

[60]That explains the two features of the evidence which the Tribunal regarded as significant – namely, the company's failure to "produce any evidence of comparable treatment of a white employee", and the unawareness of Mr Kayat's witnesses of any practice of requiring employees who could not work because of stress to see the company doctor very quickly. That was because there had not been a previous case of someone refusing to give their consent for their doctor to be approached for a medical report. In any event, the witnesses called to give evidence for Mr Kayat were all shop floor workers, and they would not have known what management's practice in such a situation was.

[61]Having concluded that the burden of proof on the issue had shifted to the company, the Tribunal then proceeded to consider whether the company had proved that there had been a non-discriminatory reason for requiring Mr Kayat to see the company doctor so soon after the onset of his illness. The Tribunal's reasons for concluding that the company had not proved that are set out in para. 93 of its reasons:

"In the absence of the [company] producing in evidence any documentary evidence [of its practice], we have looked at all of the documents we can find in the bundles (to which reference has been made in the Replies to the Questionnaire on this issue), and have found nothing which materially assists us. We cannot accept that the explanation now given by Mr Hobbs provides the sort of cogent evidence to which the cases refer. Apart from the lack of corroboration of the explanation, it is, of course, different to that contained in the 18 March 2003 letter, which refers to the illness being work-related (which clearly covers more than stress), rather than any element of stress. In the light of the fact that that letter was sent so soon after the discussions with [Mr Kayat] on 3 February 2003 (during which it is clear that Mr Hobbs was irate), we have no difficulty in linking the approach taken by Mr Hobbs on 18 March 2003 with his earlier attitude to [Mr Kayat]. We find that there was here unlawful discrimination on the grounds of [Mr Kayat's] race, in requesting the referral to the company doctor on that date."

[62]For our part, we would not be surprised if the company's practice was to refer to the company doctor as soon as possible an employee who was suffering from work-related stress. If an employee's stress was caused by something at work, any responsible employer would want to get to the bottom of that quickly – not merely to get the affected employee back to work soon but also to prevent whatever was causing the employee's stress from resulting in other employees suffering stress as well. At the same time, we would not be particularly surprised if that practice had not been recorded in any of the company's procedures. Unless it was something which occurred frequently, we doubt whether it would have occurred to anyone that it might be sensible to put it in any of the company's employment manuals. Certainly the two lay members of this Tribunal do not recall having seen such a practice expressly referred to in employment documentation – even though the good sense of such a practice is obvious.

[63]Nor do we think that there was any inconsistency between Mr Hobbs' evidence about the practice of sending employees who are off work as a result of stress to see the company doctor quickly and his letter of 18 March. The letter referred to the GP's note as saying that Mr Kayat was suffering from "depression – work related stress". A sensible reading of that note was that the depression which Mr Kayat was suffering from was caused by stress which had arisen over something to do with his work.

[64]The fact of the matter is that the Tribunal linked the requirement that Mr Kayat should see the company doctor with what it described as Mr Hobbs' "earlier attitude" to Mr Kayat. As para. 93 of the Tribunal's reasons makes clear, that was a reference to his discussions with Mr Kayat on 3 February, during which, according to the Tribunal, Mr Kayat's attitude angered Mr Hobbs. Accordingly, the Tribunal was saying that requiring Mr Kayat to see the company doctor was linked to his refusal to sign the consent form before he went on the Haj. Since that had resulted in the convening of the meeting of the panel for 6 February which the Tribunal found amounted to the discrimination of Mr Kayat on the grounds of his race, the Tribunal reasoned that requiring Mr Kayat to see the company doctor shortly after the onset of his illness likewise amounted to his discrimination. That argument disappears if the convening of the meeting for 6 February turns out not to have been an act of discrimination at all.

[65]For these reasons, the Tribunal's finding that the company and Mr Hobbs discriminated against Mr Kayat on the grounds of his race by requiring him to see the company doctor so soon after his illness prevented him from returning to work has to be set aside.

[66]The decision to withdraw Mr Kayat's sick pay . Mr Kayat's sick pay was withdrawn when he failed to contact the company about making an appointment to see the company doctor. The Tribunal did not question the company's entitlement to withdraw his sick pay in these circumstances since it was expressly sanctioned by the written particulars of Mr Kayat's terms of employment, which provided:

"The payment of sickness benefits is conditional on your full co-operation with any Company requirements for medical referral and/or request for medical information."

It was also provided for in the extract from the company's Guide to Attendance Procedures quoted in [16] above. Despite that, the Tribunal inferred that, although the company had been entitled to withdraw Mr Kayat's sick pay, the reason it did so was because of his race. It set out its reasoning in para. 95 of its reasons:

"In so far as [the withdrawal of sick pay] was very closely connected with the approach taken by Mr Hobbs on 18 March 2003, it seems to us that these matters have to be considered together, and the same reasoning as we have set out above applies equally to this particular complaint. It was clearly less favourable treatment by comparison to the white comparators called on behalf of [Mr Kayat]. We consider they are proper comparators, notwithstanding that they did not suffer from stress, because there was no sufficient evidence that the [company] universally, or even normally, applied a different policy when the absence was caused by stress. The explanation for the withdrawal is that [Mr Kayat] refused to co-operate in obtaining the medical report. Whilst [Mr Kayat] might well (as we have said) have contacted the [company] to arrange the appointment, the decision to withdraw sick pay merely because the [company] had the power to do so when, in our view, the original request was unlawful at that time, amounts to unlawful discrimination. Again, it was a decision made on racial grounds. We do not accept the [company's] explanation for this conduct as adequate. It was not supported by cogent evidence."

[67]Since the Tribunal said that it was applying the same reasoning to this complaint of race discrimination as it had done to the complaint of race discrimination over the decision to require Mr Kayat to be examined by the company doctor, and since its finding on the former has to be set aside, it follows that its finding on the latter cannot stand either. But there are a number of other things about this passage which trouble us. First, although the white employees called on behalf of Mr Kayat gave evidence about receiving sick pay while absent from work, it was never suggested that they had gone off sick immediately on their return from a long and arduous holiday, that holiday having taken place shortly after they had refused to sign a consent form permitting the company to request an up-to-date medical report from their GP for reasons which the company had not regarded as persuasive. Nor was it ever suggested that they had refused the company's requests either for information about their medical condition or to be examined by the company doctor. We do not think that Mr Kayat's case could fairly have been compared with employees who continued to receive sick pay but whose cases did not have those additional features. If his treatment had been compared with the treatment which would have been accorded to an appropriate hypothetical comparator, we do not see how the Tribunal would have been able to come to the conclusion that Mr Kayat was treated less favourably than they would have been.

[68]Secondly, the Tribunal said that the company's explanation for withdrawing Mr Kayat's sick pay was Mr Kayat's refusal "to co-operate in obtaining the medical report". If that was a reference to Mr Kayat's refusal to sign the consent form before he went on the Haj, that was wrong. The explanation the company gave for withdrawing Mr Kayat's sick pay was his refusal to contact the company about making an appointment to see the company doctor. However, to the extent that the Tribunal realised that, it looks as if the Tribunal rejected that explanation as being a genuine one on the basis that "the original request" – which we assume to be a reference to the requirement on Mr Kayat to sign the consent form before he went on the Haj – had been "unlawful at the time". Presumably, the Tribunal was saying that sine Mr Kayat's race had played its part in his being required to sign the consent form before he went on the Haj, race played its part in the decision to withdraw his sick pay. Since the Tribunal's finding that the complaint of race description in connection with the former has to be set aside, its finding in relation to the latter cannot stand either.

[69]Thirdly, one of the complaints of disability discrimination which Mr Kayat had made related to the withdrawal of his sick pay. The issue which the complaint raised was whether the withdrawal of his sick pay had been reasonable. In para. 71 of its reasons, the Tribunal found that Mr Kayat had alone been responsible for his sick pay being withdrawn "because he refused a reasonable request for a medical examination". If the company's requirement for him to be examined by the company doctor had been reasonable – and particularly if the sick pay had been withdrawn because of his refusal to be examined by the company doctor – there was no room for a finding that his sick pay would not have been withdrawn in his case if he had been of a different racial or ethnic origin.

[70]For these reasons, the Tribunal's finding that the company and Mr Hobbs had discriminated against Mr Kayat on the grounds of his race by withdrawing his sick pay has to be set aside. The complaint of unfair dismissal

[71]The complaint of unfair dismissal has to be seen in the context of the Tribunal's finding that Mr Kayat's dismissal had not been an act of race discrimination. The Tribunal found that all the evidence pointed to the company normally commencing its procedures for dealing with those on long-term sickness leave after about six months. Accordingly, in allowing Mr Kayat to remain in its employment for almost a year, the company had treated him more favourably than his comparators. In any event, the Tribunal found that, however the reason for Mr Kayat's dismissal was characterised, it had had nothing to do with his racial or ethnic origin.

[72]The Tribunal regarded the critical issue as being how the true reason for Mr Kayat's dismissal should be characterised. The company's case, as summarised by the Tribunal in para. 100 of its reasons, was that Mr Kayat had been dismissed "by reason of incapability after a continuing period of sickness absence approaching one year and on the basis that, at the time of his dismissal, and despite numerous requests, no medical information relevant to his employment position had been forthcoming". In other words, the company's case was that without information about the current state of his medical condition, there was no basis for concluding that Mr Kayat was likely to be able to return to work soon. Since his absence through sickness had lasted for almost a year, the time had come for his employment to be terminated on the basis that he was not well enough to continue to do his job. The appropriate label to attach to a dismissal for that reason is capability.

[73]The Tribunal found that Mr Kayat had been dismissed for a reason which related to his conduct. Putting that label to one side for the moment, it is difficult to find in the Tribunal's reasons an express finding about what the actual reason for Mr Kayat's dismissal had been. The closest the Tribunal came to that was when it said, in para. 97 of its reasons in dismissing the complaint of race discrimination in connection with his dismissal, that "the dismissal was caused entirely by reason that [Mr Kayat] failed to comply with [the company's] requests to obtain medical reports".

[74]The Tribunal concluded that the decision to dismiss Mr Kayat was in reality made by Ms Hardcastle and Ms Oddy. Although Mr McDonald was present at the meeting on 23 February, the Tribunal found that he was in effect only there for the ride. He had not read any of the relevant documents. He relied entirely on what he was told by Ms Hardcastle. In effect, he had not bothered to assimilate or consider the relevant material. But in coming to the conclusion that the reason for Mr Kayat's dismissal related to his conduct rather than his capability, the Tribunal said in para. 101 of its reasons:

"It is entirely understandable that Ms Oddy and Ms Hardcastle should have become, as we find, entirely frustrated by the attitude taken by [Mr Kayat] in correspondence. It is equally understandable that they were frustrated either by [Mr Kayat's] refusal to co-operate with his doctor or, as they were entitled to conclude, by his deliberate instruction to the doctor that he should not co-operate. In the light of the clear evidence set out above, we have no doubt whatsoever that those two persons did conclude that [Mr Kayat] was simply and without cause being deliberately awkward."

The Tribunal also regarded as significant the fact that the letter of 1 March informing Mr Kayat of the termination of his employment (a) referred to "the company's continuing frustration at your inability/refusal to provide the company with any medical information concerning your continuing absence and likely to return to work", and (b) included an entire paragraph dealing with the receipt by the company of the invoice for the medical report and Mr Kayat's instruction to Dr Bavington that no medical information about him was to be passed to the company.

[75]Once the Tribunal had concluded that Mr Kayat had been dismissed for a reason which related to his conduct rather than his capability, the Tribunal proceeded to find his dismissal for that reason to have been unfair on the basis that the company had not invoked its disciplinary procedure. It was the absence of a proper investigation into Mr Kayat's conduct, and the failure to hold a disciplinary hearing, which had rendered his dismissal unfair.

[76]We understand entirely the Tribunal's finding that Ms Hardcastle and Ms Oddy had become extremely frustrated by the attitude taken by Mr Kayat over the company's attempts to get information about his current medical condition, and the instruction he had given Dr Bavington about not providing information to the company. It is not surprising that Ms Hardcastle referred to those features of the stance which Mr Kayat had adopted in her letter of 1 March. But if the consequence of his adoption of that stance was that the company did not have an up-to-date report on his medical condition, it is difficult to see what else the company could have done. It is not as if the company's attempts to find out what his true medical position was were half-hearted. He had been asked to assist the company in that endeavour in no less than four letters – namely those of 8 January, 26 January, 2 February and 13 February 2004. In the latter two, he had been implored to provide the company with the information it sought.

[77]In short, in deciding that Mr Kayat was dismissed for refusing to provide the company with information about the current state of his health rather than because, without that information, the company had no way of telling whether he would be able to return to work, the Tribunal failed to give any weight to the fact that the latter was the consequence of the former. The Tribunal, in our judgment, adopted far too narrow a focus to the identification of the actual reason for Mr Kayat's dismissal. The fact that Ms Hardcastle and Ms Oddy were frustrated and annoyed by Mr Kayat's conduct did not automatically mean that it was that conduct which had been the reason for his dismissal. The Tribunal had to put that conduct into its proper context – namely that it was that conduct which resulted in the company not knowing whether Mr Kayat would be able to return to work – in deciding whether it was that conduct alone which had been the reason for his dismissal. It was that which the Tribunal conspicuously failed to do. Had the Tribunal put Mr Kayat's conduct into its proper context, we do not see how the Tribunal could have come to any conclusion other than that the reason for his dismissal had been because there was no basis on which the company could regard Mr Kayat's return to work as imminent.

[78]We make one final comment on this part of the case. To the extent that the Tribunal relied on the emphasis placed on Mr Kayat's conduct in the letter of 1 March, the Tribunal did not mention the fact that the letter went on to explain the significance of the company not getting the information it needed about the current state of his health. Having referred to the fact that, if anything, Mr Kayat had been treated more favourably than any other member of staff would have been in his position – an assertion with which the Tribunal expressly agreed in para. 97 of its reasons – Ms Hardcastle continued:

"You have been off sick for approximately 1 year and at the time of writing I still have no specific information from any medic, the nature of your illness and particularly the prospects of a timely return to work."

She added that such documents as Mr Kayat had provided in support of his request for a postponement of the proceedings in the Employment Tribunal gave "… no possible indication of when we might expect to see you back at work."

[79]Although the Tribunal found that the reason for Mr Kayat's dismissal was a reason which related to his conduct, the Tribunal went on to consider whether his dismissal would have been fair if the reason for it had been a reason which related to his capability. Again, the Tribunal did not spell out what that actual reason for his dismissal had been, even if it could have been characterised as one relating to Mr Kayat's capability, but we proceed on the assumption that the reason which the Tribunal had in mind was the company's belief that it had to proceed on the basis that Mr Kayat would not be able to return to work soon.

[80]In East Lindsey District Council v Daubney

[1977] ICR 566

, the Employment Appeal Tribunal (Phillips J presiding) considered the appropriate steps to be taken by an employer who is considering the dismissal of an employee on the grounds of ill-health. At pp. 571H-572C, it said: " Unless there are wholly exceptional circumstances , before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done. Discussions and consultation will often bring to light facts and circumstances of which the employers were unaware, and which will throw new light on the problem. Or the employee may wish to seek medical advice on his own account, which, brought to the notice of the employers' medical advisers, will cause them to change their opinion. There are many possibilities. Only one thing is certain, and that is that if the employee is not consulted, and given an opportunity to state his case, an injustice may be done." (Our emphasis)

[81]The Tribunal concluded that the circumstances in Mr Kayat's case were not exceptional. It said that the company had "concentrated entirely upon [Mr Kayat's] failure to assist in obtaining the medical report". That, of course, was no more than a repetition of its earlier finding that Mr Kayat had been dismissed for a reason which related to his conduct. But on the assumption that he had been dismissed for a reason which related to his capability, what the Tribunal had to address was whether this was one of those exceptional cases in which consultation with Mr Kayat would not have made any difference. It concluded that it was not. It said that if the company had called Mr Kayat's bluff and had asked him to attend a meeting to discuss the impact of his health on his continued employment with the company, and Mr Kayat had refused to attend such a meeting, the position would have been different. In effect, the Tribunal was saying that it had not been reasonably open to the company to think that Mr Kayat would not have refused to attend such a meeting, or that if he did, he would still have refused to provide the company with information about the current state of his health, so that asking him to attend such a meeting would have been useless and futile.

[82]We do not see how the Tribunal could have thought that the company had not been entitled to think that Mr Kayat would have refused to attend a meeting to discuss the impact of his health on his continued employment with the company. The letters of 2 and 13 February 2004 had both ended with the company literally begging Mr Kayat (or his GP) to get in touch with Ms Hardcastle (the letter of 2 February) or Ms Oddy (the letter of 13 February). He was told in terms that if he did not, his employment was likely to be brought to an end. All of that in the context that the company needed to have information about the current state of his health so that it could make an informed assessment about when he was likely to be able to return to work. It is true that Mr Kayat was not asked to attend a meeting, but his refusal to respond to either of those letters within the not unreasonable deadline for him to do so – in addition to the lack of any positive response to the previous letters of 8 and 26 January – would in our view unquestionably have resulted in the company's conclusion that inviting him to a meeting to discuss the impact of his health on his continued employment would have met with an equally negative response being a conclusion which it had been reasonably open to the company to reach..

[83]For these reasons, the Tribunal's finding that the dismissal of Mr Kayat was unfair has to be set aside. The company's and Mr Hobbs' remedies

[84]Having found that the Tribunal's findings that the company and Mr Hobbs discriminated against Mr Kayat on the grounds of his race and that the company unfairly dismissed him have to be set aside, the question then arises whether a remission of the case to the Employment Tribunal is necessary. In Hellyer Brothers Ltd v McLeod

[1987] ICR 526

, the Court of Appeal at p. 547C-D approved the statement of principle made by the Employment Appeal Tribunal in that case:

"If we are satisfied that a conclusion reached as a result of a misdirection is plainly and unarguably wrong upon the facts found by the industrial Tribunal and those facts do not require further amplification or reinvestigation, then we are entitled and bound to substitute our own conclusion as to what those findings require in law."

[85]We do not believe that the primary facts found by the Tribunal require further amplification or reinvestigation. The primary facts found by the Tribunal are clear and comprehensive, and were not challenged by the company at the hearing of the appeal. The issue on the complaints of race discrimination is(a) whether the Tribunal's conclusion that the burden of proof had in each case shifted to the company, and

(b) if so, whether the inferences of race discrimination which the Tribunal drew from the primary facts which it found were plainly and unarguably wrong, in the sense that, on the primary facts which the Tribunal found, the only conclusion which the Tribunal could have reached was that neither the company nor Mr Hobbs had discriminated against Mr Kayat.

[86]To the extent that this issue raises the question whether the Tribunal's conclusions on the burden of proof and whether the inferences which it drew from the primary facts which it found were perverse, we have borne in mind the useful warning given by the Court of Appeal in Yeboah v Crofton

[2002] IRLR 634

at [93] about the risk that too close an examination by the Employment Appeal Tribunal of the evidence and the findings of fact made by the Employment Tribunal may lead the Employment Appeal Tribunal to substitute its own assessment of the evidence for that of the Employment Tribunal and to usurp the fact-finding function of the Employment Tribunal. Nor have we ignored the Court of Appeal's strictures on only allowing a ground of appeal based upon perversity when an overwhelming case has been made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, could have reached.

[87]Having said all that, we have concluded that(a) in at least one of the complaints of race discrimination which the Tribunal upheld – the decision to convene the meeting for 6 February – the Tribunal's conclusion that the burden of proof had shifted to the company, and

(b) in all of the complaints of race discrimination which the Tribunal upheld, the inferences of race discrimination which the Tribunal drew from the primary facts which it found, were plainly and unarguably wrong. On the primary facts which the Tribunal found, the only conclusion which the Tribunal could have come to was that neither the company nor Mr Hobbs had discriminated against Mr Kayat. Our reasons for that conclusion are contained in the sections of this judgment in which we examine each of the complaints in turn. There is accordingly no need for the complaints of race discrimination to be remitted to the Employment Tribunal.

[88]Similar considerations apply to the complaint of unfair dismissal. For the reasons given in [77] above, we have concluded that the Tribunal's conclusion that Mr Kayat was dismissed for a reason which related to his conduct was one which was plainly and unarguably wrong on the primary facts which it found. And on the assumption that Mr Kayat was dismissed for a reason relating to his capability, we have concluded that, for the reasons given in [82] above, the Tribunal's conclusion that it had not been reasonably open to the company to think that Mr Kayat would have refused to attend a meeting to discuss the impact of his health on his continued employment with the company was plainly and unarguably wrong. On the primary facts found by the Tribunal, the only conclusion which the Tribunal could have reached was that Mr Kayat had not been unfairly dismissed. There is likewise no need for the complaint of unfair dismissal to be remitted to the Employment Tribunal. Mr Kayat's appeal

[89]Mr Kayat's appeal relates to each of the very many complaints which he made against the company and a number of its employees and which the Tribunal dismissed. However, his notice of appeal was not drafted by a lawyer, and it is understandably not as crisp as it otherwise might be. In particular, it does not engage with the reasons which the Tribunal gave for dismissing his complaints. Instead, it makes a number of assertions under various headings. Accordingly, the only sensible way of considering whether any aspect of his appeal should be permitted to go forward to a full hearing is by considering each of the assertions made in the notice of appeal under each of the headings used. What follows in [90] to [108] below are our comments on assertions made in various sub-headings under the heading "Errors of law/Procedure".

[90]Burden of proof . This ground of appeal argues that the Tribunal misdirected itself in relation to the burden of proof. Our task has not been assisted by the fact that the nature of the misdirection is not identified, nor is there any explanation of how that misdirection resulted in Mr Kayat being disadvantaged. Having said that, although we have found that in some respects the Tribunal failed to apply the law relating to the burden of proof properly on those complaints of race discrimination in which the Tribunal found in Mr Kayat's favour, we have not discerned any misdirection on the part of the Tribunal in a way which disadvantaged Mr Kayat on those of his complaints which the Tribunal rejected.

[91]A number of specific points are made under this sub-heading. They relate to grounds of appeal dealt with more specifically elsewhere in the notice of appeal, and we shall deal with them when we come to those parts of the notice of appeal. But there is one discrete point which we must deal with here. It is contended that the Tribunal failed to take account "of medical evidence in proving [Mr Kayat's] disabilities". Although the Tribunal found that Mr Kayat was disabled as a result of Addison's disease, the Tribunal found that the glaucoma from which he was said to be suffering did not mean that he was disabled on that account, since there had been no evidence that it had had any effect at all on his day-to-day activities. Indeed, the Tribunal expressly referred, in para. 67 of its reasons, to the medical report which Mr Kayat had submitted to the Tribunal about his glaucoma which said that very thing. If this is what the notice of appeal was referring to, the Tribunal plainly took account of the medical evidence on the topic. If the real complaint is that the Tribunal's finding on the topic was perverse, the notice of appeal does not spell out at all the basis for that contention – which the Court of Appeal in Yeboah reminded us was necessary in an appeal based on perversity.

[92]Substantive issues . The criticism of the Tribunal under this sub-heading is that it failed to make findings of fact or to reach conclusions on a number of substantive issues. The lack of specificity in this criticism makes it impossible to address. The only example given is that the Tribunal did not make any findings of fact or reach conclusions on whether the presentation of the first claim amounted to a protected act for the purpose of Mr Kayat's complaint that he had been victimised as a result of making that claim. However, that claim was presented on 4 June 2003, and the complaint can therefore only relate to victimisation after that date. It is true that the Tribunal did not expressly deal with whether the company had victimised Mr Kayat as a result of his presentation of his first claim, let alone whether the first claim amounted to a protected act, but reading the Tribunal's reasons as a whole, it is plain that the only criticism which it was making of the company after 4 June 2003 related to the way it handled his sickness absence. The Tribunal expressly said that that had not had anything to do with his racial or ethnic origin, and if the Tribunal had thought that the company might have been victimising him for "having previously taken it to the Tribunal", it would no doubt have said so.

[93]The Tribunal is also criticised under this sub-heading for not dealing adequately with the issue of indirect discrimination. That criticism is unfounded. The Tribunal found in para. 77 of its reasons – correctly, in our view – that the nature of the allegations of discrimination which Mr Kayat was making amounted to allegations of direct, not indirect, discrimination. In any event, the complaint of indirect discrimination was not pursued by Mr Kayat. At any rate, that is what the Tribunal recorded in para. 1 of its reasons.

[94]Primary facts . Under this sub-heading, it is alleged that the Tribunal did not make the necessary factual findings to enable it to determine the issues which Mr Kayat's various complaints raised. Although the topics on which allegedly insufficient factual findings were made are identified, neither the factual findings which should have been made – nor indeed the evidence on which those factual findings should have been based – are spelt out. Having said that, from our reading of the Tribunal's reasons, we have not discerned any instance of a complaint made by Mr Kayat being dismissed on a basis for which the necessary factual findings were not made.

[95]Continuous act/extension of time limits/background evidence . This ground of appeal relates to the Tribunal's finding that some of Mr Kayat's complaints could not be adjudicated upon as they had been presented out of time. The Tribunal's reasons show that the complaints which the Tribunal regarded as having been presented out of time were those which related to the company's rejection of various applications for promotion which Mr Kayat had made. One of the criticisms of the Tribunal was that the Tribunal should have treated the various occasions on which the company did not promote him as continuing acts and therefore that the complaints relating to them as having been presented in time. The Tribunal did not expressly deal with whether the occasions on which he was not promoted were continuing acts, but that must have been either because the point had never been taken that they were continuous or because the answer to the point was so obvious. After all, as Mummery LJ said in Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

at [48], the question is whether "the numerous alleged incidents of discrimination are linked to one another [so] that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'", or whether, as he said at [52], they are "a succession of unconnected or isolated specific acts, for which time will begin to run from the date when each specific act was committed". To the extent that the point was taken, the Tribunal must have found the latter: no other conclusion would seriously have been open to the Tribunal on the evidence.

[96]The other criticism of the Tribunal's finding that the complaints about the company's refusal to promote him were out of time was that, if the Tribunal could properly have concluded that the various occasions on which he had been denied promotion were not continuing acts, the Tribunal(a) should have held that it was just and equitable to extend Mr Kayat's time for complaining that they were acts of discrimination, or

(b) should have taken the company's refusal to promote him into account as background when it came to consider those of his complaints which were in time. As for (a), the Tribunal said, in para. 9 of its reasons, that there was no evidential basis which would have justified the exercise of its discretion to extend Mr Kayat's time, and the notice of appeal does not identify any basis for contending that that conclusion was perverse. As for (b), the Tribunal explained, in paras. 9 and 10 of its reasons, why no inference adverse to the company could be drawn from the company's refusal to promote Mr Kayat. The Tribunal noted that Mr Kayat had not complained to the company between 1992 and 1999 (the period during which his applications for promotion were refused) that he had suffered any form of discrimination, that until 2001 he had regarded the company as "a good place to work", and that he felt that the company had valued him. The Tribunal also noted the company's evidence that a large number of its white employees had similarly been refused promotion. In these circumstances, it is unsurprising that the Tribunal found that the evidence, when taken as a whole, was such that it could not come to the conclusion that there had been any element of discrimination during that period.

[97]Comparators . This section of the grounds of appeal contains three separate contentions. The first is that(a) the Tribunal did not accept that the comparators suggested by Mr Kayat were comparable comparators, and

(b) to the extent that the Tribunal's view was that they were not comparable comparators, the Tribunal did not then go on to consider Mr Kayat's treatment by reference to an appropriate hypothetical comparator. As for (a), apart from the comparators relied upon by Mr Kayat in connection with his complaint about the company's decision to withdraw his sick pay, the only reference in the Tribunal's reasons to named comparators are two white employees who Mr Kayat said were treated differently from him in connection with his claim to be exempted from working under the flexible working system when it was introduced. In fact, as the Tribunal said in para. 36 of its reasons, Mr Kayat had not been treated less favourably than them. Indeed, as we have seen, Mr Kayat had at all times been exempted from working under the flexible working system until his circumstances were reviewed in 2003. As for (b), there was no need for the Tribunal to consider a hypothetical comparator in this instance. The Tribunal did not doubt that the two white employees named by Mr Kayat were appropriate comparators. The Tribunal's view was that he had not been treated less favourably than them.

[98]The second issue raised under this sub-heading relates to the Tribunal's findings about the arrangements for Muslim employees over the festival of Eid. A number of them were not allowed to take leave. Although Mr Kayat was not one of them, he complained that the refusal of leave to them amounted to an act of discrimination. He now contends that the Tribunal's dismissal of that complaint was perverse. In fact, para. 26 of the Tribunal's reasons shows that the Tribunal did not come to any decision at all on that issue. It merely noted that separate proceedings brought by the affected employees had been withdrawn.

[99]The third issue raised under this sub-heading relates to a period of sickness absence which Mr Kayat took in June and July 2002. He contends that the Tribunal did not address his claim that he had been treated less favourably than comparable white employees because he had been given a verbal warning for his absence whereas they had not. In fact, the Tribunal found that he had not been given a verbal warning at all. He was merely subjected to the company's "normal" back-to-work interview. The use of the word "normal" suggests that the Tribunal was finding that he had not been treated any differently, let alone less favourably, than other employees.

[100]Procedural and other errors . This section of the grounds of appeal contains five paragraphs. In the first two, it is asserted that the Tribunal ignored provisions in various documents and made factual errors. However, no details are given of the provisions which the Tribunal is supposed to have ignored, or of the factual errors which the Tribunal is supposed to have made. In any event, if the basis for the contention that some of the documents were ignored is the absence of any reference to the documents in the Tribunal's reasons, the Tribunal observed, in para. 4 of its reasons, that it could not refer in its judgment to every document which it had considered. Accordingly, it said that the fact that a particular document was not referred to did not mean that it had not been taken into account.

[101]The next two paragraphs deal with disability discrimination. Two points are made. First, Mr Kayat contends that the Tribunal's finding that his glaucoma did not amount to a disability was perverse. As we have already said, the Tribunal did not doubt that Mr Kayat suffered from glaucoma. What the Tribunal said was that there was no evidence that the glaucoma from which he was said to be suffering had had any effect on his day-to-day activities. Mr Kayat does not say why that view of the evidence was perverse. Secondly, the Tribunal thought that Mr Kayat had not alleged that, in addition to Addison's disease and glaucoma, he had been discriminated against on the ground of another disability, namely depression and work-related stress. Mr Kayat contends that the Tribunal was wrong. We do not agree. It is true that in a document in which Mr Kayat purported to spell out his case, he wrote under the heading "Disability Discrimination Act – Psychological" that he had developed a psychological illness in addition to Addison's disease since 11 March 2003, namely depression and work-related stress. However, it is plain that he was really saying that the depression and work-related stress was the consequence of the alleged breach by the company of the Disability Discrimination Act in relation to the Addison's disease from which he was suffering, rather than the depression and stress being a free-standing disability which the company had failed to accommodate. When Mr Kayat summarised his case later in that document, he did not refer to any disability other than Addison's disease. Moreover, a later passage in the document makes the point even clearer. He wrote that his "continuing psychological illness is directly due to the discrimination and victimisation he has suffered under the Disability Discrimination Act and the Race Relations Act ."

[102]The last paragraph deals in terms with the complaint of race discrimination over the company's refusal to promote him. It is difficult to discern the error of law which Mr Kayat contends the Tribunal made, but it appears that he is saying that the Tribunal failed to give appropriate weight to particular features of the evidence – for example, the promotion of, or the giving of training to, a number of white comparators, the company's failure to provide a breakdown of the staff who had been promoted or received training, or to explain to Mr Kayat why his applications for promotion had been refused, and the company's own equal opportunities policies. We have already said that the Tribunal found that the evidence, when taken as a whole, was such that it could not draw any conclusion that there had been any element of discrimination in the period during which Mr Kayat claimed that he had been denied promotion unlawfully. Without much greater detail of the evidence which Mr Kayat says the Tribunal failed to give sufficient weight to, it is quite impossible for us to say that it is arguable that the Tribunal's finding was perverse.

[103]Failing to draw adverse inferences . Under this sub-heading, Mr Kayat cites various topics covered in the evidence for which he contends that the Tribunal should have drawn inferences adverse to the company. However, the topics are mentioned in a wholly generalised way – such as the contradictory and prevaricatory evidence of the company's witnesses, the company's failure to follow procedures, and its failure to give any, or any adequate, replies to questionnaires served under the 1976 Act. It is not possible to say on such generalised allegations that it is arguable that it was perverse for the Tribunal to fail to draw inferences adverse to the company.

[104]Equal footing . The argument in this section of the grounds of appeal is predicated on the bias alleged against the Chairman of the Tribunal. Since the ground in the notice of appeal alleging bias has been dismissed, it follows that this ground of appeal cannot be pursued.

[105]Unfair dismissal . Since Mr Kayat succeeded on his complaint of unfair dismissal, he cannot appeal against the finding that he was unfairly dismissed. What he should be treated as doing is seeking to have the finding of unfair dismissal upheld on grounds other than those relied on by the Tribunal. He makes four points. The first is that the Tribunal should have found his dismissal to have been unfair because the company failed to follow relevant codes, employment legislation and its own policies, and had carried out "protected acts". We do not understand what Mr Kayat meant by the latter in this context, but in relation to the former, although he does not state what procedures he has in mind, if (as we believe) he has in mind the company's failure to treat his case as raising disciplinary issues and therefore its failure to apply its disciplinary procedures to him, that was the basis on which the Tribunal found his dismissal to have been unfair.

[106]Secondly, Mr Kayat points out that he had indeed signed the necessary authority for the company to approach his GP for a medical report, and he could therefore hardly be blamed for the fact that the company did not get one. That ignores the Tribunal's findings that(a) within a few days of receiving it the company had requested Dr Bavington for a report on the current state of Mr Kayat's health,

(b) when Dr Bavington did not do so, the company chased the matter up on a couple of occasions, and

(c) the company was eventually told by Dr Bavington's receptionist that Mr Kayat had told Dr Bavington not to provide the company with a report.

[107]Thirdly, Mr Kayat contends that the Tribunal ignored the fact that, despite knowing that he was due to see Dr Bavington at the end of March 2004, and that a report about the current state of his health could therefore be expected in April, the company proceeded to dismiss him nevertheless. That argument ignores the Tribunal's finding that the letter to Mr Finnigan which contained that information did not arrive in time for it to be taken into account by Ms Hardcastle and Ms Oddy when they decided that Mr Kayat's employment had to be terminated. If Mr Kayat is saying that when Ms Hardcastle and Ms Oddy heard about the contents of the letter to Mr Finnigan, they should have put his dismissal on hold for the time being. But that was not put to Ms Hardcastle and Ms Oddy in the course of their evidence, and the fact remains that, as the Tribunal found, Mr Kayat had instructed Dr Bavington not to provide the company with a report on his medical condition. Accordingly, Ms Hardcastle and Ms Oddy would have been entitled to think that Mr Kayat's promise of a medical report following what he claimed to be an appointment to see Dr Bavington at the end of March was worthless.

[108]Fourthly, Mr Kayat contends that there were occasions when the Tribunal "perversely accepted bare assertions of [the company] without evidence which could be tested in cross-examination". The example he gave was that Dr Bavington's receptionist was not called to give evidence, and yet the Tribunal accepted that she had told Ms Oddy that Mr Kayat had said that the company should not be provided with a medical report. However, the company did not need to call Dr Bavington's receptionist. Calling Ms Oddy to give evidence of the conversation was sufficient – if the Tribunal was prepared to accept her evidence. The Tribunal was entitled to do that, even though Dr Bavington's receptionist had not been called to corroborate it.

[109]Perversity . Under this heading, Mr Kayat argues that many of the findings of fact which the Tribunal made, and some of the conclusions which it drew from those findings, were perverse in the sense that there had been no evidence to support them (in some cases, such evidence as there had been having been to the contrary), or that the evidence which supported them was unsubstantiated, weak and hearsay, and had been contradicted by strong, direct evidence, which had been both oral and documentary. The only way of testing that contention is by considering the five examples which Mr Kayat gives.

[110]First, Mr Kayat criticises the Tribunal for saying that there was no evidence from him about his complaints of non-promotion between 1992 and 1999. However, that was not what the Tribunal said. The Tribunal acknowledged that Mr Kayat had on a number of occasions been refused promotion. What the Tribunal said was that there was insufficient evidence from which an inference could be drawn that the reason for his non-promotion on those occasions related to his racial or ethnic origin.

[111]Secondly, Mr Kayat complains that the Tribunal said that there had been only two meetings on Mr Kayat's last day of working before he went on the Haj, when the unchallenged evidence had been that there were three. In fact, the evidence was that one of the meetings had a break in it, and whether it could properly be described as one meeting or two is no more than a matter of semantics. To the extent that Mr Kayat is claiming that the Tribunal should have found that at these meetings he was bullied, harassed and victimised, that complaint is presumably based on his own evidence, and the Tribunal must have preferred the evidence given by Mr Hobbs to the contrary.

[112]Thirdly, it is not possible to tell precisely what Mr Kayat is complaining about in the next example he gives because the relevant paragraph starts mid-sentence. But what is plain is that it relates to Mr Kayat's complaint that the company victimised him for representing those employees of the company who were Muslims in the negotiations with the company over leave of absence for the festival of Eid. The Tribunal dismissed that complaint since there was "no evidential basis whatsoever" for concluding that the company's treatment of him had been motivated by any protected act on his part, including, no doubt, his representation of Muslim workers. Mr Kayat does not explain the basis on which he contends that that conclusion was perverse.

[113]Fourthly, part of the company's evidence in the Tribunal related to a welfare meeting which Mr Coulson and Ms Oddy had with Mr Kayat on 3 July 2000 following a period of absence on Mr Kayat's part. Mr Kayat claimed that this meeting never took place, and he asked the Tribunal to disbelieve the evidence given by Mr Coulson and Ms Oddy about the meeting (even though a trade union official was present), since a contemporaneous document which recorded that the meeting had taken place was not the form which should have been used for a meeting of that nature. The Tribunal said that it had been "driven to the conclusion" that Mr Kayat had not been telling the truth about that issue. Mr Kayat does not explain the basis on which he contends that the Tribunal's assessment of the evidence on that issue was perverse.

[114]Fifthly, on 19 March 2001, a meeting took place between Mr Kayat and representatives of the company in the wake of the company's response to the representations which Mr Kayat had made about leave of absence for Muslim workers over the festival of Eid. The purpose of that meeting was to discuss the inappropriateness of an unannounced visit made by Mr Kayat to the company's head office to see Mr Finnigan a couple of weeks earlier. In the Tribunal, Mr Kayat claimed that this meeting had been a disciplinary hearing, but the Tribunal thought otherwise. The purpose of the meeting, it found, was simply to make it clear to Mr Kayat that unannounced visits to head office should not continue. The complaint which Mr Kayat makes in his grounds of appeal is that that finding was perverse, but he does not explain why.

[115]In summary, it is plain that none of the complaints made by Mr Kayat of perversity in the Tribunal's findings have an arguable chance of success.

[116]Inadequate reasons . Under this heading, Mr Kayat complains that in a number of respects the Tribunal failed to give adequate reasons for the rejection of some of his complaints of "bullying, harassment, various forms of discrimination, victimisation etc". With one exception, all his complaints of inadequate reasons on the part of the Tribunal relate to that. Mr Kayat does not identify which particular complaints this allegation relates to, but doing the best we can, we have not discerned any of Mr Kayat's complaints which were rejected but for which inadequate reasons were given. The exception is his complaint that the Tribunal failed to give reasons for its decision to revoke a witness order it had previously made for the attendance of Samantha Harris. In fact, there is no obligation to give reasons for an order unless a request for reasons is made before or at the hearing at which the order is made: see rule 30(1)(b) of the Employment Tribunals Rules of Procedure. No such request had been made by Mr Kayat in respect of the revocation of the witness order for Ms Harris. In any event, the Chairman of the Tribunal gave the reason for the revocation of the order at the time. He said that her evidence was not relevant to any issues which the Tribunal had to decide. Conclusion

[117]For these reasons, we have concluded that the company's and Mr Hobbs' appeal must be allowed, the findings of race discrimination and unfair dismissal must be set aside, and we substitute for them findings that neither the company nor Mr Hobbs discriminated against Mr Kayat on racial grounds and that his dismissal by the company was not unfair. We have also concluded that Mr Kayat's notice of appeal discloses no reasonable grounds for bringing the appeal, and we therefore order that no further action be taken on his notice of appeal.