Appeal No.	 EAT/935/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1999
Judgment delivered on 20 May 1999

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR T C THOMAS CBE
MR A D TUFFIN CBE

CITY AND HACKNEY COMMUNITY SERVICES NHS TRUST	APPELLANTS

MRS VICTORIA NWOSU	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS A BEVITT
(of Counsel)
Messrs Beachcroft Stanleys
Solicitors
20 Furnival Street
London
EC4A 1BN	
For the Respondent	MR A PANESAR
(of Counsel)
Instructed by:
The Principal Litigation Officer
Commission for Racial Equality
Elliott House
10/12 Allington Street
London
SW1E 5EH	

	MR JUSTICE LINDSAY:	We have before us the appeal of City and Hackney Community Services NHS Trust (which we shall call “the Trust”) in the matter of Mrs V N Nwosu -v- City and Hackney Community Services NHS Trust.   There was a three day hearing before the Employment Tribunal on the 13th, 14th and 15th May 1998 at London (North) under the Chairmanship of Mrs E M Prevezer.   The decision, promulgated on the 15th June, was as follows:-

“The unanimous decision of the Tribunal is that the applicant was discriminated against contrary to Sections 1 (1) (a), 4 (1) (c) and 4 (2) (b) of the Race Relations Act, and the applicant was victimised under Section 2 (1) (d) of the same Act.”

	The Employment Tribunal held that there was no evidence of direct discrimination but that there were far too many incidents cited by Mrs Nwosu and for which the Trust had no acceptable explanation to allow the Tribunal to draw any other conclusion save as their decision indicated.

	It is far from easy to discern from the decision itself the way in which the complaint had been put to the Employment Tribunal and we need to say something, by way of background, as to some, at least, of the separable incidents which were believed by Mrs Nwosu to have had, cumulatively, the discriminatory effect upon her that the Tribunal’s conclusion upheld.   

	Mrs Nwosu is a black African.   She was employed by the Trust from June 1986 as a Health Visitor on Grade G.   In 1988 she had sought promotion to H Grade.   She failed to be promoted and lodged an internal appeal on the point.   Progress with that appeal was quite remarkably slow.   A meeting to deal with the appeal was convened in 1991 and, as far as we can judge from what we were told at the hearing, the appeal was fully heard but it then transpired that the panel that had heard it had been ineligible to be a panel.   The panel was, in other words, incompetent in the technical sense.   There was then further delay.   An adjudication panel was arranged for 1994.   It did not take place.   By April 1996 the Trust’s Human Resources Manager, presumably embarrassed at the delay, offered Mrs Nwosu £1,000 to withdraw her appeal.   She did not accept the offer.   The appeal, even today, remains unheard.   The conduct of the arrangements for the appeal on the Trust’s part is one of the matters that Mrs Nwosu relies upon as a matter from which racial discrimination can be inferred.

	Another complaint concerns her application to be a Community Nurse Team Manager.   She was not short-listed for the job.   The public advertisement for the job had indicated that a minimum of 3 years experience as a District Nurse G Grade or as a Health Visitor was essential.   Mrs Clarke, an Afro-Caribbean, whose name occurs at several points in the matters complained of by Mrs Nwosu, was a principal person in the selection process on the Trust’s behalf.   Another Afro-Caribbean, Mrs Robinson-Barnes, was short-listed despite not, according to Mrs Nwosu, having had the required experience and despite her having, according to Mrs Nwosu, problems with her health.

	A third head of complaint concerned Mrs Nwosu’s application to be a Community Practice Teacher.   She failed to obtain the post after interview.   It was Mrs Nwosu’s case that the Trust’s own Equal Opportunities Policy had not been honoured in connection with the way in which applications for the Community Practice Teacher’s job were handled by the Trust.   

	Mrs Nwosu also claimed that Mrs Clarke had manifested prejudice against blacks of African extraction in the way that she had treated another black African, Clara Igboanugo, who had worked for the Trust for 17 years.   Mrs Nwosu relied on the alleged prejudice of Mrs Clarke against Mrs Igboanugo as indicative of prejudice that Mrs Clarke had also exercised against her, too, as a black African.   In the course of her evidence Mrs Clarke had said, in relation to the selection process, that she had not known (presumably at the “paper” short-listing stage rather than at interview) of the ethnic origins of Mrs Nwosu as an applicant nor of the ethnic origins of some of the other applicants for the jobs.      

	There were a number of other complaints with which the Tribunal dealt.   For example, at a Childs’ Health meeting, Mrs Nwosu had been present but the Chairmanship of the meeting had been awarded to another.   It later counted against Mrs Nwosu in her job applications that she had no sufficient experience in chairing meetings.   The Minutes in connection with this meeting, it seems, had been incorrectly made and Mrs Nwosu had complained of that fact.

	Another incident the Tribunal dealt with was one in which Jane Downing had been allowed to remain for some 9 months or so in a post which had originally been advertised as a for only 6 months.   In that way she acquired experience to apply for a post as a Grade H Community Team Manager, experience the absence of which told against Mrs Nwosu.   

	Another incident concerned whether Jane Hutt of the Trust had or had not given Mrs Nwosu a good reference.   She claimed that she had but the reference itself could not be found.

	Another complaint concerning Jane Hutt was that she had gone straight from G Grade to I Grade in 1991 and yet Mrs Nwosu had been told “You could not be upgraded to “I” without first having an “H” Grade post”.	

	That is no more than a summary of  the Tribunal’s own summary and, as we mentioned, it is by no means clear just what racial or discriminatory content each particular complaint was said to have had.   The Tribunal said, having concluded their summary:-

“14.These and other incidents [Mrs Nwosu]  gave as background added to the feeling that she had been discriminated against and victimised because of her race, which led to her filling out her IT1 after her failure to be appointed to the posts 	as set out”.

	It is against that background that the Trust raises a number of points by way of appeal.   

	The first topic Miss Bevitt, on behalf of the Trust, raised was that of victimisation.   It will be remembered that the Tribunal found that Mrs Nwosu was victimised under Section 2 (1) (d) of the Act.   Section 2 provides:-

“(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a)	brought proceedings against the discriminator or any other person under this Act;  or
(b)	given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;  or
(c)	otherwise done under or by reference to this Act in relation to the discriminator or any other person;  or
(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things or suspects that the person victimised has done, or intends to do, any of them”.

	It is convenient to speak of those acts or things in (a) to (d) as “protected acts”.   Miss Bevitt draws attention to the fact that, leaving aside its mention in the heading to which we have referred, “victimisation” is mentioned only twice in the remaining pages of the decision namely, in paragraph 14, which we have already quoted, where Mrs Nwosu’s feeling that she had been discriminated against was referred to, and in paragraph 16 where part of Section 2 (1) (d) was cited.   Miss Bevitt complains that nowhere in the decision is the “protected act” which is relied upon to support the finding of victimisation identified by the Tribunal, nor is it anywhere said that Mrs Nwosu had done or intended to do or was suspected as having done or as intending to do any identified protected act.   Nowhere in the decision is an individual identified as a “discriminator” who is held to have treated Mrs Nwosu less favourably, within the meaning of the opening words Section 2, nor is it anywhere held that such a person had treated Mrs Nwosu less favourably “by reason that” she had done or intended to do or was suspected of having done or of intending to do a protected act.   There is, in other words, says Miss Bevitt, on this last point, no indication that the Employment Tribunal had had in mind the test as to conscious motivation, deriving form the words “by reason that”, which is set out in Nagarajan -v- London Regional Transport [1998] IRLR 73 C.A..

	Miss Bevitt draws our attention to Meek -v- City of Birmingham District Council [1987] IRLR 250 C.A. and to the familiar judgment of Bingham L.J. at paragraph 8 where he says that a decision of an Industrial Tribunal must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and the statement of the reasons which have led them to reach the conclusion which they do on those basic facts.   The parties, said Court of Appeal in that case, are entitled to be told why they have won or lost.   There should be, the Court continued, sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, the Court of Appeal, to see whether any question of law arose.   It was highly desirable, added the Court of Appeal, that the decision of the Industrial Tribunal should give guidance both to employers and Trade Unions as to practices which should or should not be adopted.

	When one has a responsible body such as a National Health Trust being found guilty of a serious matter such as victimisation on racial grounds it is especially important that it should be told why it has been so found guilty, if only so that it can take corrective steps to stop the position arising again.   In our judgment the Meek -v- City of Birmingham D.C test is not satisfied by the Industrial Tribunal’s judgment as to victimisation.   We see this to be an error of law, as were, also, the related shortcomings we have described in the failure to identify the protected act, the failure to find that Mrs Nwosu had done (or intended to do or was suspected of having done or of intending to do) such an act, the failure to find less favourable treatment by some one or more individuals and the failure to apply and be seen to have applied the Nagajaran test.   We are not, of course, saying that the Tribunal could have done no other than to have found the Trust innocent of victimisation.   The facts as found do not provide sufficient for a finding one way or another on the point.   Upon our having seen the errors of law to which we have referred, we see no course open to us other than to remit the issue to a fresh Tribunal.

	The decision of the Tribunal did not, clearly or at all, separate victimisation from any more general forms of racial discrimination.   There were not, for example, separate headings for the two parts of the complaint.   It is not easy to separate out from the decision such parts as relate only to victimisation and such parts relate to discrimination more generally.   It is thus tempting to say that if the victimisation issue is to go back to a fresh Tribunal then so also should the issue of discrimination.   However, we do not think that that would be a correct approach.   Nonetheless, the Trust’s task in procuring a remission of the discrimination issue is, if anything, lightened once one has the position in which at least one major issue is in any event being restored to a fresh Tribunal.	

	At several points during the argument as to discrimination generally Miss Bevitt  found herself hamstrung.   The Appellants had, at the Preliminary Hearing, sought the Chairman’s notes on a number of issues but had obtained an order for the Chairman’s notes upon only one very limited subject.   At that Preliminary Hearing, on the 21st October 1998, the Tribunal had ordered that the parties should lodge with the EAT and exchange with each other their respective Skeleton Arguments 14 days before the full hearing.   Miss Bevitt’s Skeleton Argument is dated the 19th April.   It clearly asserts that on a good many subjects the Appellant’s case was to be that there was no evidence to support the findings that the Employment Tribunal had come to.   Mr Panesar’s Skeleton Argument on behalf of Mrs Nwosu was received by the EAT and given to the Appellants, in serious breach of the Employment Appeal Tribunal’s direction, only some 30 minutes or so before the hearing began.   Had Mrs Nwosu’s Skeleton Argument been supplied on time there would have been the ability in the Trust to come back to the EAT and ask afresh for Chairman’s notes but on a wider range of subjects, the Trust by then having been seen and being able to demonstrate that the Appellant’s case that there was no evidence on a number of topics was not accepted by Mrs Nwosu’s advisers.   The case could, if necessary have been adjourned without the parties being then put to the expense of full preparation for an early substantive hearing.   As it was, we were left in the very unsatisfactory position, on many topics, that we were told by Miss Bevitt, who had been at the hearing below, that no evidence was given on this point or that whereas Mr Panesar, who had not been at the hearing, was being told on instructions that, whilst there was no written evidence on this or that topic, oral evidence had been given upon it, but, of which, of course, we had no record.   It was Mr Panesar’s submission that it was for an appellant, should he or she need the Chairman’s notes, to have seen to their being available at the EAT.  Whilst that is, in general, correct, given that Miss Bevitt had sought a wider range of Chairman’s notes in the first place and that it was  shortcomings on Mrs Nwosu’s side as to their Skeleton Argument that had, at least in part, contributed to her inability to have restored the matter earlier to the EAT for further directions as to Chairman’s notes, Mr Panesar’s submission was, on the facts of this case, if not bold, then less than fair.   It is not as if Miss Bevitt’s case as to there being no evidence on particular topics was totally without foundation.   On 3 particular subjects it was conceded by Mr Panesar that there had indeed been no evidence at all for the particular findings described.   In our approach to the Trust’s appeal we do need to bear in mind that it had found itself hamstrung, in part at least, by reason of matters outside its control and for which some blame could be laid at the door of others.   A good many of Miss Bevitt’s points adumbrated in her Skeleton could not, in the event, be fully pursued because no record is before us, one way or another, as to whether there was evidence before the Employment Tribunal of the particular facts found by the Employment Tribunal but for which, as the Appellants assert, there was no foundation whatsoever.   However, there are some remaining areas in which the Trust was not so hamstrung and in respect of which a full argument was heard.   We shall attempt to deal with some of them.

	It will be remembered that the Employment Tribunal had held that there was no evidence of direct discrimination against Mrs Nwosu.   The particular form that the alleged discrimination took was largely not by whites against blacks or only by whites against blacks but in part at least by black Afro-Caribbeans against black Africans.   The Tribunal, as we have mentioned, took a cumulative view of the incidents upon which Mrs Nwosu had relied and held:-

“There were too many incidents referred to by the applicant for which there was no acceptable explanation by the respondent’s witnesses for us to draw any other conclusion.   The ethnic mix amongst those involved in the management of the respondents, were black Caribbean or white.   There appeared to be no black Africans in managerial posts in the primary care nursing area, with which we were concerned.”

A little later the Tribunal concluded:-

“Having found that the explanation put forward by the respondent’s witnesses is inadequate, we therefore find that the discrimination that took place was on racial grounds and compensation should be paid accordingly.”

So far  as concerns the Tribunal’s view of witnesses generally, it held:-

“The fact that the Equal Opportunities Policy was blatantly ignored, leads us to prefer the evidence of the applicant on those matters that are in dispute and to form an inference that the reason that the applicant was treated in the way that she was was because of her African origins”.

	The Employment Tribunal never identified which provisions of the Equal Opportunities Policy were ignored or blatantly ignored nor by whom they were ignored or blatantly ignored and in any event it is difficult to see why, without some fuller explanation, the fact, as so found, that the policy was ignored should of itself suggest that Mrs Nwosu’s evidence should be preferred on matters in dispute.   Even so, accepting at face value the reason given for preferring the evidence of one side to another, there needs to have been due procedural fairness in the admission of evidence or the exclusion of evidence and it is on this point that Miss Bevitt rests much of those parts of her argument with which we can proceed.

	The first complaint of this kind concerns the Tribunal’s treatment of the delay in relation to Mrs Nwosu’s re-grading appeal.   In their paragraph 18 the Tribunal concluded:-

“We find that the delay in dealing with the applicant’s re-grading appeal followed by the other matters from 1988 to 1997 and her failure to be short-listed and appointed to the posts as set out above shows that the applicant was treated differently and less favourably than other employees.   We then have to look to the respondents for an explanation as to whether there are reasons for this less favourable treatment”.

The Trust’s case in relation to the delay in relation to Mrs Nwosu’s appeal would, had the Trust been permitted to develop it, have been that there were reasons for the delay connected with repeated changes in the organisation of the Trust which explained at least part of the delay and that the cases of other appellants, equally or similarly delayed, would, if examined, indicate that there was nothing racial about the imposition of delay in relation to such appeals.   The Trust, for example, said Miss Bevitt, had evidence ready of the case of a white person whose long-standing appeal, at the time the Employment Appeal Tribunal heard this matter, was still waiting for hearing, just as was Mrs Nwosu’s.   Miss Bevitt tells us, and we have no reason to doubt, that the Trust was in a position at the hearing to substantiate such a particular case and to advance such an argument.   There had been delays but there was nothing racial about them.   However, it is the Trust’s case before us that they were denied the opportunity of presenting such evidence.   In order to enable the Trust to advance such arguments, as long ago as the 7th September 1998, prior to the Preliminary Hearing of the Trust’s appeal to this Tribunal, an affidavit had been sworn by Hannah Wiskin, the solicitor in the firm of Beachcroft Stanleys who had had the conduct of the proceedings on behalf of the Trust as Solicitor and who had been present at the hearing below.   She deposed that there were passages in the witness statements of the Trust’s witnesses which the Employment Tribunal had refused to allow to be read out at the hearing and that the Tribunal had indicated that in cross-examination the oral evidence of the Trust witness,  as far as the Tribunal was concerned, should be limited to the subject of the failure to short-list Mrs Nwosu for the posts for which she had not been short-listed.   Argument at the Employment Tribunal, the Tribunal directed, (so deposes Hannah Wiskin) was to deal only with the way in which one of the two posts was filled and the relationship between the marking system and the essential criteria in respect of the other post.   A copy of Hannah Wiskin’s affidavit was, as is the usual practice, sent by the Registrar at the EAT to Mrs Prevezer as Chairman for her comments, which were received in a letter of the 15th September 1998.   The Chairman makes the point that the witness statements were read in their entirety by the Panel even though not read out at the hearing.   However, there is a world of difference between, on the one hand, a Tribunal’s indicating that a witness statement need not be read out verbatim (because, for example, it has already been read by the Tribunal) and, on the other, a refusal to allow a statement or parts of it to be read (which will generally be taken to be the exclusion of it or the part of it from the received body of the evidence).   We do not read the Chairman’s letter, indicating that the statements were in fact read by the Tribunal, as rebutting Hannah Wiskin’s evidence that the subject matter before the Employment Tribunal had been restricted in the way that she had indicated.   The outcome would seem to have been that, by reason of there being no supporting facts, the Trust was denied the assistance of a material argument based on Zafar -v- Glasgow City Council [1998] IRLR 36, namely that for Mrs Nwosu to show that there had been incompetence or delay should not suffice if it could be shown, as would have been the Trust’s evidence, that others in other racial groups equally suffered and that the delay, even the incompetence, if such it was, was explicable on grounds other than ones involving discrimination.   Mr Panesar urges that we should not, so to speak, accept Hannah Wiskin’s word against that of the Chairman.   Where there is a dispute between the advisers to a party and the relevant Chairman we would see force in that submission but here we see no conflict between what is said by Hannah Wiskin and what is said by the Chairman.   The Chairman’s letter does not rebut the limitations on the evidence to which Hannah Wiskin speaks on oath. 

	A similar point is made in relation to application forms.   If the Employment Tribunal had intended to rely, as it transpired it did, on a failure of Mrs Nwosu to be short‑listed for one of the posts, then fairness required that the Tribunal should hear the full case of the Trust as to why that had been so.   The Trust’s case would have been  that, upon a relative appraisal of Mrs Nwosu’s application form and those of other applicants, those of the other applicants were to be preferred and hence that those other applicants were proper to be short-listed, ahead of Mrs Nwosu.   As to that Hannah Wiskin’s affidavit says:-

“At the conclusion of the respondent’s evidence-in-chief, the Employment Tribunal indicated that the respondent’s evidence had been repetitive and, at times, irrelevant and that cross-examination of the respondent should be confined to what was in dispute between the parties.   However, when Miss Bevitt sought to cross-examine [Mrs Nwosu] on the weaknesses in her application form compared to the strengths of the application forms of the short-listed candidates the Employment Tribunal refused to consider any of the application forms in the bundle.   The Employment Tribunal indicated that questions relating the application forms should be addressed to the [Trust’s] witnesses.   
12.	The [Trust’s] witnesses gave evidence on the 14th May 1998.   The [Trust’s] first witness, Ms Mary Clarke, was allowed to read out all her witness statement as her evidence-in-chief.   However when Miss Bevitt sought to take Ms Mary Clarke to the application forms the Employment Tribunal said that it “Did not need to go into these” and that the witness had “Said enough” (the Employment Tribunal later made similar comments when Miss Bevitt attempted to take other witnesses to the application forms).  The Employment Tribunal then indicated that cross-examination of Ms Mary Clarke should concentrate on the appointment of the two posts.”

	We do not understand the Chairman’s letter of the 15th September to quarrel with Hannah Wiskin’s version of the facts.   The letter has several references to interviews conducted but does not, as it seems to us, purport to deal with the earlier stage of short-listing on the basis of paper application forms, the point upon which the Trust was denied the ability to call evidence.   Given that the Employment Tribunal ultimately relied, inter alia, on a failure of Mrs Nwosu to be short-listed, it does seem here that a conclusion was reached by the Tribunal on a point as to which they had excluded evidence at an earlier stage, evidence that might have shown there to be no racial component in the failure to short-list but rather a preference of some candidates, on paper, to others on grounds having within them no racial element.   To conclude against a party on a ground upon which one has precluded it from completing its evidence does seem to us to be materially unjust.

	Quite at what point procedural unfairness becomes so sharp as plainly to represent error of law is not easy to decide but in the third of the complaints of such a kind made by the Trust the case is, if anything, more clear.   It will be remembered that Mrs Nwosu, seeking thereby to prove Mrs Clarke’s prejudice against Africans, sought to give evidence of Mrs Clarke’s prejudicial treatment of Mrs Igboanugo.   Mrs Nwosu had hoped and expected Mrs Igboanugo to give evidence on her, Mrs Nwosu’s, behalf.   Mrs Nwosu had prepared a draft affidavit intending it to be sworn by Mrs Igboanugo.   However, it transpired that Mrs Igboanugo was not willing to sign or swear the statement or to give evidence, voluntarily, on Mrs Nwosu’s behalf.   Therefore, unknown at that stage to the Trust, Mrs Nwosu made application ex parte to the Employment Tribunal, before the substantive hearing, for a witness order requiring Mrs Igboanugo to attend at that hearing.   In order to indicate to the Employment Tribunal at that ex parte hearing the importance of the evidence which was said to be the evidence which Mrs Igboanugo would give, it was described to the Employment Tribunal at that Preliminary Hearing by way of the supply to them of the proposed draft affidavit.   It spoke of Mrs Clarke’s rude and aggressive manner to Mrs Igboanugo.   It spoke of Mrs Clarke acting in a discriminatory manner against Mrs Igboanugo;  it showed discrimination by Mrs Clarke as an Afro-Caribbean against Mrs Igboanugo as an African.   Indeed, more generally, it said:-

“There are many Africans who have been treated in an aggressive, rude and racially discriminatory manner by Mrs Clarke and some members of City and Hackney Community Services NHS Trust.   They are left to stagnate, without any career progression and there is culture of intimidation and fear which had made it almost impossible for anyone to come forward”.

	Not surprisingly, the Employment Tribunal at the Preliminary Hearing, having seen that as the proposed evidence, granted a witness order requiring Mrs Igboanugo to attend, as she did.   When the Trust received the decision of the Employment Tribunal after the substantive hearing they saw its paragraph 9 which reads as follows:-

“Mrs Clarke stated in evidence that she did not know the ethnic origins of the applicant and of some of the other candidates.   Again, we find this difficult to believe, in view of the fact that this is quite a closed community and that the applicant’s name is obviously of African extraction.   In fact, we heard from Clara Igboanugo who is of African ethnic origin, for whom a witness order had been sought as she had been working for the respondents for 17 years.   An Affidavit had been filed by the Applicant for Clara Igboanugo showing how those of African origin had been ignored and not been promoted and also, the treatment of this witness by Mrs Clarke.   In evidence Mrs Igboanugo was hostile to the applicant but did identify some letters that had been written by Mrs Clarke to her and her letter of complaint to Mrs Clarke.   They clearly showed that there had been friction between them and that Mrs Igboanugo had been in conflict with Mrs Clarke and been treated unsympathetically”.

	On reading that part of the decision, the Trust, as we have understood it, saw for the first time weight being attached to the so-called “affidavit”, the contents of which had hitherto not been revealed to it.   On the subject of the use of that “affidavit” at the hearing Hannah Wiskin’s evidence was as follows:-

“The respondent then produced an unsworn affidavit which she had drafted for Ms Igboanugo and which Ms Igboanugo had refused to swear.   A copy was handed to the Employment Tribunal who remarked that the affidavit was unsworn.   At no stage was a copy given to the [Trust].   Ms Igboanugo stated that she had not agreed to swear an affidavit on behalf of [Mrs Nwosu]  and that she had played no part in drafting it.   She said that when [Mrs Nwosu] had asked her to swear the affidavit she had refused and that she had confronted [Mrs Nwosu] because she had not given her permission to “put [Ms Igboanugo’s] personal letter into the affidavit”.   Ms Igboanugo then confirmed that she had written the letter to Ms Mary Clarke at page 179-180 and had received the reply at page 191.   She finished giving evidence at 11.30 a.m..   
7.	The contents of the unsworn affidavit were not put to Ms Igboanugo.   As the [Trust] was not given a copy of the unsworn affidavit it does not know what is contained therein.”

Nothing in the Chairman’s letter of the 15th September disputes or qualifies any of Hannah Wiskin’s comments on the treatment of the so-called “affidavit”.   We do have the Chairman’s notes of the evidence of Clara Igboanugo and nothing in those notes refutes Hannah Wiskin’s version of events.   

	It is impossible to conclude that the Tribunal did not give any weight to the so‑called “affidavit”.   Not only was it expressly mentioned but its contents were described.      We are entitled to ask why that was done if no reliance was being placed on its contents?   If the Tribunal, having described the contents, had then intended to put them out of mind it would surely have said so.   When, ultimately, the Tribunal’s conclusion was that there were too many incidents referred to by the applicant for which there was no “acceptable explanation”, there is no reason given to enable us to exclude as not within the Employment Tribunal’s purview the incidents to which the “affidavit” had referred.   It thus seems to be the case, firstly, that the Employment Tribunal had received as if evidence and had described as “an affidavit” - a term applicable only to sworn evidence - three sheets of paper the contents of which were unseen by the Trust, which Ms Igboanugo had not drafted, which she had not agreed to swear, which she would not swear as her own evidence and which were not put to her at the hearing and, secondly, that weight was given by the Employment Tribunal to such paper.   It is not as if the Employment Tribunal gives any reason for disbelieving Ms Igboanugo’s evidence as to her refusal to have it as her evidence.   She was, of course, called by Mrs Nwosu so the Tribunal’s general preference of the evidence of Mrs Nwosu would not seem, of itself, to indicate any disbelief of Ms Igboanugo.   Moreover, we do have the Chairman’s notes of the evidence of Clara Igboanugo and nothing therein suggests that her credibility was in issue or provides any grounds for her being disbelieved.   Her letters, to which the Tribunal refers, do show friction between her and Mrs Clarke but not that it had any racial content.   To get that one has to look at the “affidavit”.   As for her oral evidence or her relations with Mrs Clarke, Hannah Wiskin’s affidavit, uncontradicted by either the Chairman’s notes or her letter was that:-

“She gave evidence that she had “no problems with [the Appellant]”.   She said that her manager, Ms Mary Clarke, had written to her as a result of a misunderstanding, that she had discussed the matter with Ms Mary Clarke and that it was “O.K.”. ... At no stage did Ms Igboanugo allege that there was hostility between her and Ms Mary Clarke ... or that employees of African origin had been ignored or not promoted.”

	For the Employment Tribunal to have received the “affidavit” in the manner we have described was, in our view, an error of law and, even more so, was it such an error to have gone on to have relied upon it in the way in which we have to take it that it was.   No Employment Tribunal properly directing itself could have received the paper in the way that this one did, still less to have spoken of it as “filed” and as an “affidavit” and to have given any weight to it.   Even if the curtailed treatment of the Trust’s case as to delays in the appeal and as to short-listing, as we have described the same above, did not amount to error of law, this third matter -the “affidavit” - does in our view represent such an error.   There were many other arguments sought to be raised by Miss Bevitt but we see no need to deal with all of them.   Indeed, it is not even desirable for us to do so as it might be thought that we were prescribing the approach to be taken by the Tribunal to which we see it appropriate to remit the matter.   We conclude by allowing the appeal, by setting aside the decision below in total and by remitting to a fresh Tribunal not only the issue of victimisation but the whole of Mrs Nwosu’s complaints.