Appeal No. UKEAT/0668/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 2003

Before
HIS HONOUR JUDGE J MCMULLEN QC
MR J R CROSBY
MS P TATLOW

MR G G MADDEN	APPELLANT

(1) PREFERRED TECHNICAL GROUP – CHA LTD	RESPONDENTS
(2) MR M GUEST

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G G MADDEN
(the Appellant in Person)	
For the Respondent	MR SEAN JONES
(of Counsel)
Instructed by:
EEF Legal Services
Broadway House
Tothill Street
London SW1H 9NQ	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about discrimination on the ground of Irish nationality, and victimisation. The legal principles are found at paragraphs 45-55, and our conclusions, dismissing the appeal, at 56-63 below.  The judgment represents the views of all three members.  We will refer to the parties as the Applicant and the Respondents.

Introduction

2	It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at Birmingham, Chairman Mr D Hewitt, registered with Extended Reasons on 1 July 2003.  The Applicant was represented there by Counsel instructed on behalf of the Commission for Racial Equality and today represents himself.  The Respondent was represented there and here by Mr Sean Jones of Counsel.

3	The Applicant claimed unfair dismissal, wrongful dismissal, race discrimination and victimisation.  The Respondents denied all the claims.

The Issues

4	The essential issues, as defined by the Employment Tribunal, were to decide upon the contractual and statutory dismissal claims and the claims under the Race Relations Act 1976.  The Tribunal decided at an earlier hearing that the first Respondent unfairly and wrongfully dismissed the Applicant and ordered a remedy hearing.  Compensation was being claimed, not reinstatement or re-engagement.

5	The Tribunal dismissed the claims under the Race Relations Act 1976.  The Applicant appealed against that decision.  The Respondents did not appeal the other decisions.

The procedural history of this case

6	It is necessary to say something about the procedural history.  The Applicant brought proceedings by way of an Originating Application in December 1996 which was dismissed by an Employment Tribunal in November 1997.  He was summarily dismissed on 23 February 1998.  

7	On 27 March 1998 a fresh Originating Application was presented, which is the subject of the current proceedings.  A substantive hearing was concluded on 22 July 1999 and a decision with Extended Reasons was registered on 3 August 1999.  An appeal against that decision was lodged with the EAT by the Applicant on 21 September 1999.  At a Preliminary Hearing on 14 February 2000 His Honour Judge Peter Clark and members allowed the appeal to go to a full hearing, which in due course took place on 22 January 2001, Judge Clark again presiding.

8	The Respondents’ Counsel accepted at that hearing that the victimisation claim, the subject of appeal, should be allowed and remitted.  In respect of the race discrimination claim in its simple sense, the EAT decided that too should be remitted.  Very clear directions were given as to the scope of the remitted hearing, as follows:

“THE TRIBUNAL ORDERS that the Appeal be allowed and that the matter be remitted to the same Employment Tribunal to reconsider questions of direct race discrimination and victimisation and outstanding questions of contribution to the unfairness of the Appellant’s dismissal and remedies for unfair dismissal and wrongful dismissal in accordance with the Judgment of the Employment Appeal Tribunal …”

9	The principal criticisms of the Employment Tribunal leading to that Order were summarised as follows:

(2)	“There are no clear findings:
(a)	as to the less favourable treatment found by the Tribunal, based on their findings of primary fact;
(b)	as to which actual or hypothetical comparators they have used;
(c)	as to what explanation was put forward for the less favourable treatment by the Respondents, and whether such explanation was considered adequate or not by the Tribunal, and
(d)	whether the Tribunal considered whether or not they should draw the inference of unlawful discrimination and if so, why they declined to do so.”

10	Thus the scope for the remitted hearing and the substance of the appeal before us were tightly circumscribed.  There was no appeal against the EAT’s judgment remitting this matter to the Employment Tribunal.  That was not an end to the matter, however, because some interim sparring occurred in relation to complaints by the Applicant of delay affecting the ability of the same Employment Tribunal to continue to hear the case. 

11	The Applicant was dissatisfied with the decision of a Chairman to continue to implement the EAT’s Order and again appealed against that decision to the EAT where a Preliminary Hearing was conducted by an EAT presided over by His Honour Judge Serota QC.  An Order was issued on 20 August 2002 requiring fidelity to the EAT’s previous Order and dismissing the claim that the case should be heard in a differently-constituted Tribunal.  An application was made by Counsel for permission to appeal to the Court of Appeal which was refused.  The Employment Tribunal hearing duly took place (paragraph 2 above).

12	Directions sending this appeal to a full hearing were given in chambers by His Honour Judge Ansell in August 2003.  Thanks to the flexibility of Mr Jones, the Applicant has been able to refer us to an additional bundle of documents without objection for certain limited purposes.  Otherwise the orders have been complied with.

The Legislation

13	The relevant provisions of the legislation were cited by the Employment Tribunal:

7	“The relevant law in relation to direct discrimination is contained in Section 1 of the Race Relations Act 1976 which (so far as it is relevant) reads as follows: -
“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons.”
8	Victimisation is dealt with in Section 2 which provides as follows:
“A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant to the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that he person victimised has:
(a)	brought proceedings against the discriminator or any other person under this Act or
…
(c)	otherwise done anything under or by reference to this Act in relation to the discriminator or any other person…”
…
10	Section 47 (10) of the Race Relations Act (as amended) provides: -
“A failure on the part of any person to observe any provision of the Code of Practice shall not of itself render him liable to any proceedings, but in any proceedings under this Act before an Employment Tribunal any Code of Practice issued under this Section shall be admissible in evidence, and if any provision of such a Code appears to the Tribunal to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”

14	The Tribunal directed itself by reference to what we hold to be the leading authorities, 19 of which are cited by the Tribunal in its Reasons, emanating as one would expect in a case such as this with skilled representation from the oral and written submissions of both Counsel.

The Facts

15	The facts are cited as follows.

	4	…
(a)	The applicant was employed by the first respondents from the 22 February 1993 until he was summarily dismissed on 23 February 1998.  He held various positions, but at the time of his dismissal he was employed as a Development Technician.  The nature of the Company’s business is the manufacture of couple hose assemblies for power steering and turbo charger oil feed lines in the Automotive Industry.
(b)	The applicant is Irish by nationality.  The Company employs approximately 300 people of which some 77 belong to ethnic minorities.

16	During the course of the Applicant’s employment he has, as we have indicated, brought proceedings of race discrimination against the Respondents.  The Applicant’s essential case is that following those proceedings he was the subject of victimisation by the Respondents as well as further direct discrimination.

17	The Applicant was appraised by Mr Guest in January 1997 and the matters in it were critical of the Applicant’s performance and his attitude.  The Applicant himself was critical of the appraisal and it was identified that there was a need for additional training.  In addition the Applicant submitted requests for holiday leave which he contended were not properly dealt with.

18	The Applicant attended an informal meeting with the Respondents’ Managing Director, Mr Brendan Johnson, and Mr Lee Smith in order to clear the air on 1 December 1997.  There was also a contention by the Applicant that he was being unfairly allocated to work known as batch work.  There were criticisms of his completion of expenses forms.

19	On 3 February 1998 the Applicant was asked to attend a meeting with Mr Guest and Mr Baker.  This meeting is important.  The Applicant indicated that he would be told the date of his appraisal and that there was some criticism of him and of the way in which he conducted his work including complaints about his driving.

20	Arising out of that, in due course the Applicant was required to attend a disciplinary hearing on 9 February 1998.  The Applicant handed two envelopes to those at the meeting.  One was addressed to Brendan Johnson, the other to the Human Resources Director of the parent company in the United States.  Eventually the meeting was adjourned and the letters were sent to the addressees.  The letters alleged unreasonable treatment by the Respondent of the Applicant and in them he set out the totality of his complaint.

21	He received a verbal warning because he had torn up his appraisal form on 3 February.  A memorandum was submitted and during the course of a disciplinary procedure the Applicant was dismissed with effect from 23 February 1998.  Appeals against that were unsuccessful.

22	The Tribunal held that the Applicant was unfairly dismissed by the First Respondent because of its approach to the disciplinary matters.  He was himself at fault and thus the Tribunal indicated that it would reserve to another date its consideration of submissions on contributory fault.

23	The Tribunal considered the race discrimination claim in very short terms and dismissed it.  On that basis the EAT decided the matter should be further considered by that Employment Tribunal.  At the hearing of the remitted case the Tribunal heard no further evidence but heard submission from Counsel and then proceeded to deal with the issues which had been pointed out as failings by the EAT.  It considered 14 separate allegations of either direct discrimination or victimisation.  Taking an astringent approach to these it is possible to say that the Tribunal found that the Applicant was treated less favourably on half of those.  In respect of two of the complaints, actual comparators were cited.  In respect of others, hypothetical comparisons were made.

24	The Tribunal, however, dismissed claims of unlawful discrimination based on grounds of race or on the basis of having made a protected act in respect of any of the 14 allegations which are made.

25	It is important to note that this Tribunal was led to conduct its proceedings by three important guides.  One of course is the law (to which we have referred); the second was the direction by the EAT; the third was the presentation of the case and the arguments by Counsel

The Applicant’s Case

26	At the Employment Tribunal on behalf of the Applicant it was contended that each of the 14 incidents was itself an aspect of discrimination providing a free-standing claim to which a remedy would be attached, whether by way of direct discrimination of victimisation.  It was thus necessary for the Tribunal to descend into a specific analysis and make findings for the purpose of the statute on each of those.  Secondly, if the Tribunal rejected any of those claims it should nevertheless consider whether in their totality the failed claims, together with any successful claims, amounted to a course of conduct which is known as a continuing act, pursuant to the judgment of Lord Griffiths in Barclays Bank v Kapur [1991] ICR 208.  For that purpose it was contended that no individual act of discrimination need to have been found provided if in totality the circumstances added up to what is described as a continuing act of discrimination.  That approach is enjoined by the authorities.
27	On appeal, the Applicant submitted that the Tribunal had erred in law because it simply asserted things that are wrong and factually inaccurate.  It was accepted by the Applicant that his Counsel had not argued for a hypothetical comparison to be made but solely an actual comparison.  Criticism was made of the Employment Tribunal in respect of the comparators chosen in respect of one of the headings; that is, the need for training.

28	It was contended that the Tribunal had failed in its approach to the totality of the evidence, had failed to apply the relevant authorities so as to set out its findings by reference to the globally emerging picture.  The Tribunal was criticised for inventing what was described as a new no-facts test.  It substituted the explanation of the Respondents where that was inadequate for its own explanation, contrary to the judgment of the EAT in Gonzalves v Diment [2003] EAT/870/02.

29	It was contended that the Tribunal had applied the incorrect test of detriment.  It should have accepted the Applicant’s case as he put it forward, that he had himself suffered a detriment, and it should have looked at the matter from his perspective.  The Employment Tribunal did not identify what the Applicant was complaining about: for example the comparators for the driving complaint were identified.  It was contended that there were inadequate findings of fact and that the assertions of the Employment Tribunal were wrong.

30	As to what were described as hostility indicators, the Employment Tribunal did make findings but the Employment Appeal Tribunal, it was contended, found that there were no such findings; in other words, it was contended by the Applicant that the Tribunal should have gone on to make further findings in the light of the EAT’s judgment which we have cited above.

31	The Employment Tribunal was criticised for its failure to analyse properly the credibility of the relevant witnesses, for it was alleged that a bald statement was made as to the Tribunal’s acceptance of the Respondents’ evidence in preference to the Applicant’s.  The Tribunal was under a duty to determine the relevant circumstances and this included a reflection of who the Applicant and the comparators were line managed by.

32	As to victimisation, it is contended that the Tribunal failed to make proper findings as to what is a protected act.  Illustrations were given of the Applicant’s requests for holidays and the unusual involvement of Mr Guest upon the very day when he signed the witness statement to the Employment Tribunal at the very first hearing.  

33	It was contended that the Tribunal had totally distorted and muddled up findings of fact, that it had got its facts wrong and if the facts had been found there would have been a totally different picture.  Further, it was contended that the Tribunal had failed to consider aiding and abetting.

The Respondents’ Case

34	On behalf of the Respondents, it is contended that the Skeleton Argument advances matters not within the grounds of appeal. Dealing flexibly with that matter, Mr Jones agreed that he would take the point as and when each point was made and he has done in respect of several of the issues which we have cited above.  The Applicant has argued today in a way which is quite different from, and indeed the opposite of, that which was submitted on his behalf.  For example, his Counsel submitted named comparators and the Tribunal accepted them as being relevant.  The paradox of this case, Mr Jones submits, is that the Applicant is seeking to challenge findings in his favour.  That is as true of the comparators, he says, as it is of the finding of less favourable treatment.

35	It is contended that the Tribunal made the correct approach to the meaning of detriment in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL, albeit Shamoon had been decided in the Northern Ireland Court of Appeal but had not been decided by the House of Lords at the time of the submissions in this case.  But in any event, the finding in the Northern Ireland Court of Appeal that the detriment required in a claim of discrimination of physical or economic consequences is not mentioned by the Employment Tribunal and therefore no criticism can be made that the Tribunal wrongly relied on it.

36	As to comparators relating to the “driving” point, Mr Jones submitted that evidence from the Applicant shows that he had not made the point which he now makes; that is, that he was threatened with dismissal whereas others with criminal convictions for driving had not.  In this respect this is a new point, argues Mr Jones.

37	As to the findings of fact, it is contended that the Tribunal was required to make findings of fact and, if it chose on the material and if it thought appropriate, to draw inferences therefrom.  The Applicant was not entitled to go beyond the scope of the EAT’s order closely defining the scope of the remitted hearing.

38	The Tribunal had considered the Code of Practice but was not required to follow it.  But in any event, findings had been made in the Applicant’s favour, pursuant to the two points made on his behalf relating to breach of the Code.  There was no connection between such breaches and any relevant discrimination.

39	As to insufficient reasons, the finding that the Applicant and Mr Guest were affected by a personality clash was amply born out by the Applicant’s own case, for which his witness statement was relevant.  Similar points were made in respect of the Applicant’s complaints about the Tribunal’s treatment of his issues on training and expenses.

40	It was accepted by Mr Jones that the reference by the Employment Tribunal to the Irish nationality of Mr McMurty, a comparator, was not relevant to the formal finding.  It was pointed out that this was to reinforce a finding.  Of course, Mr Jones accepts that being Irish does not mean that you cannot be guilty of discriminating against an Irish person.  As we pointed out, Northern Ireland had fair employment legislation 27 years before it applied to Great Britain (from today). Ireland’s constitution outlaws discrimination against certain Irish people.

41	It is submitted that the Applicant’s approach to the hypothetical comparator is imperfect and represents a failure to understand the judgment of the House of Lords in Shamoon. (above)  Further, it is contended by reference to the judgment of the House of Lords in Zafar v Glasgow City Council [1998] ICR 120 that one cannot deduce from unreasonable treatment a finding of less favourable treatment on the ground of race.

42	As to the credibility of the witnesses, it is submitted that the Employment Tribunal did look at each factual issue and did not make a blanket assessment.  Complaints made about the allocation of the Applicant to batchwork were not made in the Notice of Appeal and do not reflect a generalised rejection of the evidence.

43	It is accepted on behalf of the Respondents that the Tribunal’s initial approach to identifying the test and relevant comparator in respect of a victimisation claim is imperfect at paragraph 15 (b) of the Reasons, but the Tribunal makes a clear finding in relation to that matter in the second part of paragraph 16.

44	It is contended that the Applicant is not entitled to make a submission that the Tribunal was inventing a new no-facts case, for this offends against the rule that no new submissions may be made here without permission.

The Legal Principles

45	The legal principles to be applied in this case appear to us to be as follow.

46	A point may not be argued on appeal at the EAT if it is a new point not previously taken at the Employment Tribunal: see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.

47	The threshold for perversity in an Employment Tribunal decision is high.  The material must be overwhelming, for the Employment Appeal Tribunal does not have the same advantage as the Employment Tribunal in order to enable it to deal with matters of fact: see Yeboah v Crofton [2002] IRLR 634.

48	The test for deciding race discrimination cases is set out in King v Great Britain China Centre [1991] IRLR 513, summarised in the Employment Tribunal’s decision as follows:

9	“The judgment of Neill LJ in King includes the following:
‘From several authorities it is possible, I think, to extract the following
(i)	It is for the applicant who complains of racial discrimination to find direct evidence of his or her case.  Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(ii)	It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases the discrimination will not be ill-intentioned but merely based on assumption that “he or she would not have fitted in”.
(iii)	The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 65 (2) (b) of the 1976 Act from an evasive or equivocal reply to a questionnaire.
(iv)	Although there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  In such circumstances the tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.  This is not a matter of law, but as May LJ put it in North West Thames Regional Health Authority v Noone “Almost common sense”.
(v)	It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.  At the conclusion of all the evidence, the tribunal must make findings as to the primary facts and all such inferences as they consider proper from those facts.  They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case’.”

49	A Tribunal must give reasons for its decision: see Meek v City of Birmingham District Council [1987] IRLR 250, including its reasons for not drawing an inference: see Deman v Association of University Teachers [2003] EWCA Civ. 329.

50	Less favourable treatment is defined by the speech of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 and is as follows:

9	“The present case is a good example.  The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to.  Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors.  Unlike her, they retained their counselling responsibilities.  Is this comparing like with like?  Prima facie it is not.  She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not.  This might be the reason why she was treated as she was.  This might explain why she was relieved of her responsibilities and they were not.  But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was.  It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations.  If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10	I must take this a step further.  As I have said, prima facie the comparison with the two male chief inspectors is not apt.  So be it.  Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made.  On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated?  But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was.  It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was.  Was it grounds of sex?  If yes, then she was treated less favourably than a male chief inspector in her position would have been treated.  If not, not.  Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue.  And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.”

The test for detriment is also defined in the speech of Lord Scott of Foscote.

51	The test for discrimination is set out by Mummery P in Qureshi v Victoria University of Manchester & Another [2001] ICR 863 which is summarised with approval by the Court of Appeal in Anya v University of Oxford & Another [2001] IRLR 377 at paragraph 9.  He distinguishes background or evidentiary facts and substantive facts going to a finding in respect of a specific complaint of discrimination which is properly alleged within the Originating Application and timeous.

52	In certain circumstances it may be necessary to construct a hypothetical comparator: see Ballamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 647.

53	An Employment Tribunal should not make a blanket assessment of the evidence on credit.  It must give reasons for rejecting or accepting the evidence of particular witnesses: see Sedley LJ in Anya (above) citing from Morison P in Tchoula v Netto.
54	Discrimination and victimisation may be conscious or unconscious: see Nagarajan v London Regional Transport [1999] IRLR 572

55	An employer treating an employee unfairly does not shed light on or draw the inevitable conclusion that such treatment is unlawfully discriminatory: see Zafar (above).

Conclusions

56	We reject the arguments of the Applicant and have decided that the appeal should be dismissed.  We uphold the submissions of the Respondent.  First, we uphold the submission that the Applicant is not entitled to raise what we have identified with the help of Mr Jones as new points.  They require new material to be produced and in this case which has been to the EAT three times there are no grounds on which new points might be entertained.  Furthermore, a more practical approach is to say that the points which the Applicant identifies were the opposite of the points argued on his behalf by Counsel experienced in these matters.

57	We reject the contention that the Employment Tribunal made perverse decisions in this case.  As indicated, the test for perversity is extremely high.  An overwhelming case has not been made out.  We can understand that the Applicant makes the case based upon at least half of his complaint having been resolved at the first stage in Qureshi in his favour; that is, that he suffered less favourable treatment.  But to submit from that that there was perversity because there was no evidence, or the evidence was all one way, or that the Tribunal so misunderstood the facts, is a task in which the Applicant has failed.  He has not made out the case for an overwhelming rejection of the Tribunal’s reasoning satisfying the exacting standards in Yeboah v Crofton.

58	The Applicant’s complaint that the Tribunal did not look at the totality of the case cannot be sustained.  First we reject the contention that the Tribunal has simply asserted that it has looked at the totality and has not applied it in practice, for the Tribunal said this:

16	“Having examined each of the individual complaints made by the applicant the tribunal has reconsidered its findings to ensure that they accord with the evidence.  It is satisfied that they do.  The tribunal has then looked at the applicant’s complaints separately, collectively and “in the round”.  It has considered the totality of the complaints and the evidence in relation thereto.  It remains satisfied as to its primary findings of fact.  In relation to the direct discrimination claim it has asked itself again whether in respect of those matters where no less favourable treatment has been found, the evidence justifies those findings.”

59	We would need to be impressed by internal inconsistencies or an overwhelming case on the facts to form the view that when a Tribunal said it was doing it, it did not in fact do it.  It has looked at each of the allegations as enjoined by Counsel on behalf of the Applicant and, having found against him on each one, has not left the matter there but has gone on to look at matters in the round to see whether indeed a fresh approach to the matter would be directed by standing back. We reject the contention that it simply asserted something which it was not in fact doing.  This Tribunal was keenly aware of the fact that it had in part found in favour of the Applicant but he had failed to prove each of the allegations of direct discrimination and victimisation.

60	In respect of the protected act for the purposes of victimisation, whilst it is true that the Tribunal at one stage was indicating a comparison with others of the employees of the Respondent who had also committed a protected act, the conclusion which it draws is not in our view an error of law, for the Tribunal says:

16	“Having regard to all the evidence the tribunal is satisfied that in relation to those complaints that post-date the protected act the applicant would have been treated in precisely the same way had that protected act not been committed.”

In other words, that is the correct comparison and the Tribunal has in other parts of its Reasons indicated that the correct analysis is to seek the grounds, as suggested by Lord Nicholls in Shamoon, on which treatment has been afforded in order to answer what Lord Nicholls described as the “reason-why” question.

61	In our judgment the Tribunal has done just that.  It is entitled where there is no evidence to say so and to resist drawing any inference of race discrimination where there has been no primary evidence from which it could move to an inference.

62	Turning to the hypothetical comparators, in a case like this there was no duty on the Employment Tribunal to construct hypothetical comparators; although when it has done we accept that these are to shed light upon its original findings.  It must be remembered this case was run by Counsel entirely on the basis of named comparators.  For the most part, the comparators put forward were upheld by the Tribunal as relevant.  What was not upheld was that they had been treated more favourably, or that the Applicant had been treated less favourably, on the ground of his Irish nationality or on the ground that he had committed a protected act.

63	In our judgment this Tribunal has correctly approached the test for discrimination laid down in Qureshi and the test for drawing inferences laid down in King.  It has told us, when it has declined to draw inferences, the basis for such decision, broadly speaking but not in every case that there was no evidence or no sufficient evidence upon which it could so do.

64	The Tribunal must be acquitted of making a blanket finding in favour of the Respondents and against the Applicant because it decides this matter in respect of only one of the 14 matters.  If this were a blanket condemnation of the Applicant’s evidence, as illustrated by Morison P in Tchoula, that would apply to all 14; whereas the Tribunal has decided on the basis of preferring the Respondents’ evidence in respect of only one of the 14 complaints – and for that it gave sufficient reasons.

66	In these circumstances we consider that the Tribunal has made no errors of law.

Disposal

67	We appreciate that the Applicant feels dissatisfaction at the way in which this case has been resolved, for there are aspects which move his case some substantial way towards a finding of discrimination; but it must be borne in mind that proving discrimination requires a number of steps to be taken and that the Applicant has failed if not at the first stage then at the second in each of the complaints he made.  There is, as we say, no criticism of the Tribunal for the approach it took or the conclusion which it reached.

68	We gave the procedural chronology in this case and the Applicant has acknowledged before us that he is not in these proceedings for monetary compensation which has yet not been determined.  As he put it, “the remedy can wait as long as it takes”.  However, he is not the only person engaged in these proceedings since there is a corporate and an individual Respondent; and it cannot be right for this matter to be delayed any longer.  It is seven years or more since the substance of the first claim arose and the Tribunal has not yet descended upon the task which the EAT set it of determining remedy and contribution.  It has not done so because the parties agreed that they would not ask it to and so that may be a partial explanation of what would otherwise be wholly unacceptable delays in this case.

69	The matter will now go back to the Employment Tribunal for it to resume its consideration, on the EAT’s Order, of remedy and contribution, which we will now reactivate.  This will be heard with an estimate of one day.  Mr Madden will serve his schedule of loss within 14 days of today.

70	An application has been made for permission to appeal to the Court of Appeal.  The sole ground is that due consideration was not given to the Applicant’s grounds of appeal.  We refuse that since it has no reasonable prospect of success, for in our view the Applicant’s case was given due consideration, here following our pre-reading and preliminary discussion of the papers.