Appeal No.	 EAT/344/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 2000

Before
THE HONOURABLE MR JUSTICE BELL
MR J C SHRIGLEY
MR G H WRIGHT MBE

MR T VAUGHN	APPELLANT

LIVERPOOL CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C HAY
(Lay Representative)
Northern Complainant Aid Fund
Check Point
45 Westgate
Bradford
BD1 2TH	
For the Respondents	MR T KENWARD
(of Counsel)
Legal Services Agency
Personnel and Administration Directorate
Liverpool City Council
Solicitors' Business Unit
Room 130, First Floor
Municipal Buildings
Dale Street
Liverpool
L69 2DH	

	MR JUSTICE BELL:	This is an appeal by Mr Vaughn against the decision of the Employment Tribunal held at Liverpool over four days in September and three days in November 1998. The decision was promulgated on 12th January 1999. It rejected Mr Vaughn’s complaint of direct racial discrimination and of discrimination by way of victimisation and it ordered him to contribute £100 towards the respondents’ costs.

1.	Section 1(1)(a) of the Race Relations Act 1976 provides:

“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 …”

	Mr Vaughn’s case of direct racial discrimination was that he was treated less favourably in respect of an application to have time off or to share his job in order to help look after his baby.

2.	Section 2(1)(d) of the Act provides:

“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-
…
(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, …”

3.	Mr Vaughn’s case of discrimination by way of victimisation was based on the respondents’ decision to subject him to an investigation into why he had made an allegation of racial discrimination which was said to have been made late. 

4.	Section 2(2) of the Act provides however:

“Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

5.	The Notice of Appeal alleges that three questions of law arise. The first is whether the Employment Tribunal erred in law in finding that the respondent did not discriminate against the appellant on racial grounds and in making an award for costs against the appellant. That question in turn relies upon the second and third alleged questions of law, namely whether the Employment Tribunal failed to make material findings of fact and as a consequence misdirected themselves in law and whether the decision of the Employment Tribunal is perverse.

6.	The Notice of Appeal goes on under the heading “Grounds of Appeal” to make detailed allegations of failure by the tribunal to make material findings of fact; failure to deal with allegations of disparity of treatment and the respondents’ explanation of such disparities and failure to consider relevant evidence. It alleges that a number of the tribunal’s findings of fact were wrong. 

7.	The respondents challenge most of the criticisms. Where the criticisms may have some foundation, they contend that they are without consequence so far as the tribunal’s decision is concerned.

8.	In these circumstances, it is necessary to recount the essence of the tribunal’s findings of fact and the reasons for its decision. 

The Employment Tribunal’s findings of fact

9.	Mr Vaughn is black. His employment by the respondents began on 15th January 1991. He was most recently employed as assistant area support officer. He was a member of one of three teams that came under the management of Ms Duffy. The respondents have since the beginning of 1998 operated what they term “family friendly policies” which include provisions as to special leave. Such leave might be granted for childcare during times of illness. Before the inauguration of those policies, the respondents might grant special leave for childcare, but their consent would depend upon the exigencies of the service.

10.	In early July 1997, Mr Vaughn asked Ms Duffy if he might work reduced hours as he needed more time to care for his child. The tribunal found that she could not support the requests. The demands or work would not allow it. She told Mr Vaughn that he might take the matter further by putting his request in writing. The tribunal found that Mr Vaughn said that if he did so Ms Duffy must realise that “nothing personal” was intended. According to Mr Vaughn that conversation took place on 10th July. Ms Duffy was not sure whether it was 10th July, but if not, it was only a little before 10th July.

11.	On 10th July 1997 the appellant did make a written request for job sharing in addition to his request already made for reduced hours and he made a written request for reduced hours in the alternative. Ms Duffy replied in writing refusing his request.

12.	The tribunal found that Ms Duffy was entitled to the view that to reduce Mr Vaughn’s hours would hinder the work of the team. She genuinely thought that job sharing was not an available option because of a “job freeze” which was then operative. In the tribunal’s view she had some reason for that view.

13.	As a result of the refusal of his written request, on 11th July 1997 Mr Vaughn, through his union representative, Mr Worrall, invoked the grievance procedure. The tribunal found that Mr Vaughn was complaining of the refusal of the request for reduced hours and that was not, and was not taken to be, a complaint of race discrimination pursuant to the respondents’ “Bullying, Harassment and Discrimination Policy”.

14.	It fell to Ms Trantom to arrange the grievance hearing. On her return from leave she booked a room for 6th August 1997, but failed to make other necessary arrangements. She confessed that her failure was a careless omission and administrative error, that was how the tribunal saw it also. She tried to repair her errors too late. The earliest date available was 26th August 1997. Mr Vaughn wanted the hearing to take place sooner. Meanwhile it was agreed that he should be allowed to job share after all. The tribunal found that in those circumstances the reason for his grievance appeared to have been removed. Ms Trantom did nothing further to arrange a hearing. She wrote a memorandum to Mr Vaughn on 1st September 1997 saying so.

15.	When Ms Duffy’s refusal of job sharing came to the attention of the respondents’ principal employment relations officer, Ms Devine, she gave the view that unless Mr Vaughn’s post had been declared unsuitable for job sharing, he was entitled to job share. As soon as Ms Duffy heard that this was so, she made the appropriate arrangements. She told Mr Vaughn and provided the information that enabled the post to be advertised.

16.	The respondents’ job sharing scheme according to Ms Devine’s understanding gave employees a right to job share on application in the absence of agreement that a particular job may not be shared. The tribunal concluded that that doubtless represented the intention of those who compiled this scheme, but the tribunal had sympathy for Ms Duffy’s view that such a right was not expressly set out. The scheme provided that any grievance about its interpretation or application should proceed by way of the respondents’ grievance procedure.

17.	Ms Duffy reasonably enough in the tribunal’s view (and as the tribunal thought she was entitled to do) would not let the job share start until the other sharer had been appointed. Mr Vaughn wanted his reduced hours to start immediately but to allow that would have been to the prejudice of the job. Mr Vaughn accused the respondent of discriminating against him. Ms Duffy recorded the accusation on the day it was made in the memorandum of 13th August 1997, it was the first time he had made it. The accusation was repeated in a memorandum dated 5th September 1997 from Mr Worrall to Mr Maunder, Director of Housing and Consumer Services.

18.	No internal applications were received for the job share. The vacancy was more widely advertised and on 3rd October 1997 an appointment was made. Ms Devine personally monitored the progress of the appointment, trying to advance it as expeditiously as possible.

19.	Unfortunately the advertisement contained a mistake. The hours advertised were those when Mr Vaughn wanted to work, not the hours he wanted to take off. It was a careless mistake in the tribunal’s view but nothing more. When an appointment was made, it was made for the hours as Mr Vaughn wanted.

20.	On 5th September 1997, as already indicated, Mr Worrall wrote a memorandum to Mr Maunder making for the first time in writing, in the judgment of the tribunal, the accusation of race discrimination. In that he said that Mr Vaughn had “made it clear” to Ms Duffy on 11th July 1997 that her refusal of his request was discriminatory. But in the tribunal’s view Mr Vaughn had not done that. It was only on 13th August 1997 that he first referred to discrimination.

21.	On 23rd September 1997, Mr Worrall sent a further memorandum to Mr Maunder setting out the nature of the applicant’s case of discrimination against Ms Duffy. The accusation was that from the time when the request was made, her conduct was to be explained as racial discrimination. Her refusal of his request had, in the tribunal’s view, become “an outright refusal even to discuss it.” The mistake, as to hours, in the advertisement was “at best serious incompetence” but “at worst could be conceived as a further deliberate attempt to compound Tony’s [Mr Vaughn’s] difficulties”. 

22.	Mr Maunder appointed Mr Mark Julius and Mr Paul Wells to investigate the accusation of discrimination. He told Mr Worrall in a letter dated 30th September 1997 that he had set up a team to do that. 

23.	The tribunal had copies of statements embodying Mr Vaughn’s case against the people he said discriminated against him. They were prepared for the investigation. Ms Duffy was one of those he accused. She refused his job share application. The tribunal found that he also accused Mr Maunder who “validated” Ms Duffy’s discrimination by not taking Mr Vaughn’s complaints seriously, failing to ensure that a hearing took place quickly and failing to take action against Ms Duffy. Mr Maunder was responsible for the poor organising of the hearing which did not reflect the seriousness of the complaint.

24.	Mr Vaughn complained that similar requests by three white employees were treated more sympathetically than his and were granted. Those were Ms White, Ms Sharpe and Mr Beaumont. He complained that Ms Duffy spent half an hour with Mr Beaumont but only two minutes with him.

25.	The tribunal found that Mr Beaumont’s request was granted because his reduction in hours would not affect the work of his team, where there were fewer vacancies than in Mr Vaughn’s team. By contrast in May 1996 she refused a request from Ms Grimes because the number of vacancies in her team did not enable her to grant it.

26.	The tribunal found that Ms Duffy had no part in the decisions affecting Ms Sharpe or Ms White. Ms Sharpe returning from maternity leave had, as a woman, an automatic right to job share. Ms White was allocated to a job by Ms Duffy’s superiors. She had for some years been on job share and relocated after a distressing absence. In both cases, the circumstances were different in the tribunal’s view from those of Mr Vaughn.

27.	The tribunal found that the investigator, Mr Julius, compiled a thorough report. They exonerated Ms Duffy of the accusation that she had discriminated against Mr Vaughn on the ground of his race. Mr Fitzhenry and Ms Devine too, were exonerated. Mr Maunder was recommended to ensure that managers should correctly know what the arrangements for job share were. Mr Julius recommended a review of arrangements for handling grievances. Mr Maunder was also recommended to institute an investigation of Mr Vaughn’s failure to specify racial discrimination earlier as part of his grievance. Mr Julius devoted much attention to the delay in formulating the complaint of discrimination in writing and expressed doubt as to Mr Vaughn’s motives.

28.	The tribunal found that Mr Maunder gave instructions to carry out the investigation into the late grievance. It was postponed pending Mr Vaughn’s appeal and was never pursued.

29.	Finally, on 14th May 1998, the appropriate sub-committee of the respondents’ personnel committee rejected Mr Vaughn’s appeal against the findings of the report. He did not attend. He did not want the appeal to go ahead because he had already lodged a complaint with the Industrial Tribunal, as it then was. The sub-committee properly proceeded with their consideration of the appeal, in the tribunal’s view, and rejected it.

30.	Having set out those facts as they found them to be at paragraph 3 (a) to (v) of its decision, the tribunal went on to ask itself whether the respondents subjected Mr Vaughn to a detriment:

“4(a)  … His application for fewer hours or a job share were refused, the latter wrongly so. There was incorrect information in the advertisement for one to job share with him. There was hitch in arranging a hearing of his grievance. His grievance was discontinued when he was allowed to job share. An investigation into his motive for accusing the respondents of discrimination was instituted. His appeal against the findings of the investigation was rejected. All these were detriments.
(b)	Mr Maunder’s reception of Mr Worrall’s complaint was not a detriment at all. Mr Maunder took it seriously and directed immediate and appropriate action.”

31.	The tribunal then asked itself if there was a difference of race:

“5. … Three white employees were allowed either job share or reduced hours. Ms Duffy spent more time on talking to Mr Beaumont than to the applicant. The implication was that a white employee would not have been subject to the errors committed by the respondents.”

32.	The tribunal then investigated the respondents’ explanation for the detriment taking each of the detriments previously found in paragraph 4(a) one by one as follows:

“6. … The refusal of a reduction in hours was justified by the demands of the service. The refusal of job share was a mistake ultimately corrected. The advertisement and the abortive grievance hearing represented careless slips. When the grievance procedure was discontinued, it was genuinely considered, for sufficient reason, that the grievance had been met. The lateness of the accusation of discrimination justified suspicions as to his motive: when his request had been granted, but the job share was, properly, not to operate as quickly as he wanted, his grievance changed to one of discrimination; that smacked of insincerity. The rejection of his appeal was rationally justified; he did not appear at the hearing to prosecute the appeal."

33.	The tribunal’s conclusions concerning Mr Vaughn’s complaint were:

“7(a)  Did the respondents’ explanation exculpate them? We reminded ourselves that almost always an innocent explanation of alleged racial detriment will be offered: rarely will discrimination be admitted and rarely will direct evidence of it be available. Indeed, it may be unconscious or even well-intentioned. We must look at all the circumstances to see if there is any evidence that justifies our inferring that there has been discrimination. We must not hesitate to make such inferences as are justified by the evidence, even if it were only hints and apparently small suggestions.
(b)	No inference that there had been discrimination was justified. Mistakes were made, careless and understandable. The decision not to reduce the applicant’s hours was unwelcome and inconvenient; but it was a decision Ms Duffy was entitled to make and she made it by looking only to the effects on the service of granting the applicant’s request. It was quite uninfluenced by his race: the circumstances of the other employees who made successful applications were different. Mr Maunder did nothing that might be termed discriminatory. The hearing of the grievance was stopped before anyone realised that the applicant wanted a formal complaint of discrimination to be dealt with. We could discern nothing in the decision to proceed with the appeal or its rejection that might warrant an inference of discrimination.
(c)	Was the applicant victimised (for the purposes of Section 2 of the Race Relations Act 1976) by the decision to subject him to an investigation into why he made a late complaint of discrimination? We had to decide whether he was treated less favourably than in the same circumstances the respondents would have treated another, because he accused the respondents of race discrimination. We also asked whether the allegation made by the applicant was false and not made in good faith; if it were, Section 2(2) of the Act would prevent his reliance on the provision as to victimisation.
(d)	The applicant made a late complaint of discrimination: it was orally made in August, a month after Ms Duffy had refused his request, and formalised early in September and it arose only when he learned that his job sharing might only begin when there was someone to share with him. The allegation was false and we could not accept that he made it in good faith: his request has been granted but not in the way he wanted; the accusation was a way of maintaining a grievance that would otherwise have been closed. Besides, anyone in the same circumstances would have been subject to the same process.”

34.	So far as costs were concerned, the tribunal decided as follows:

“8(a)  The respondents applied for costs. We all found that the applicant had dressed up a grievance over hours as an accusation of race discrimination that, at least initially, he did not believe in. It was unreasonable to initiate and maintain the complaint before us.
(b)	In applying our discretion whether an order should be made, our majority decided that one should: these accusations were very serious and led to expenditure of much time, expense and care. Having noted the applicant’s means and having in mind his family obligations, we decided that our order should not be crippling, but should be enough to be felt and to make clear the view we took of the case. The figure ordered was £100.
(c)	Our minority member acknowledged that here was a false, unreasonable accusation irresponsibly made. But it was enough on this occasion to record that view and not to make an order that would burden the applicant.”

The Appeal

35.	Against that background, we come to the points made by Mr Hay in support of this appeal. It is convenient to take first a point which Mr Hay took on the nature of the decision made by the tribunal. The written decision describes its decision as unanimous so far as rejection of Mr Vaughn’s complaints of direct discrimination and discrimination by way of victimisation were concerned, but by a majority of two to one so far as the award of costs was concerned. When the Employment Appeal Tribunal held a preliminary hearing on 26th May 1999 it asked among other matters for comments from the Chairman and members of the tribunal on the points made in the Notice of Appeal and on the contents of an affidavit sworn by Mr Hay at the Appeal Tribunal’s request. 

36.	The Chairman’s comments were contained in a letter dated 12th October 1999. One of the other members of the tribunal, Mr Lobley, said that he had nothing to add to the Chairman’s comments. The third member of the tribunal, Mr Drayton, did not reply until 8th April 2000. He apologised for the delay, attributing it to a combination of ill health and domestic problems. His letter suggested that though he had not been convinced of direct discrimination against Mr Vaughn he was of the view that there had been victimisation. He did not consider that Mr Vaughn’s allegation of discrimination was not made in good faith, so he was in the minority so far as both victimisation and costs were concerned by his account. 

37.	Mr Hay accepts that this does not give rise to a free-standing ground of appeal upon which he could succeed in quashing the tribunal’s decision. But he says that it is a sign of confusion in the tribunal’s written decision concerning discrimination and victimisation that the decision should wrongly describe the latter as unanimous. Taken with all the other points which he makes, Mr Hay contends it should lead us to treat the decision as deficient or unsatisfactory.

38.	We note the two and a quarter years passage of time between the Employment Tribunal’s promulgated decision and the time of Mr Drayton’s letter, delayed for the reasons which he gave. In our view it is far more likely that Mr Drayton was confused in his recollection than was the Chairman in writing and signing the decision to which we have already referred in detail. In any event, even if Mr Drayton is correct in his recollection, it does not alter the fact that the decision against Mr Vaughn in relation to discrimination and victimisation was reached by a true majority. In our view this first point neither provides a ground of appeal in its own right, nor does it add anything to Mr Hay’s other points and the main thrust of his appeal.

40.	Mr Hay introduced his main points by referring to Meek v City of Birmingham District Council [1987] IRLR 250 CA, and particularly paragraph 8 of the judgment of Bingham LJ, as follows:

	“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it 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 a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.”

41.	If this appeal began and ended with the tribunal’s written decision with its detailed findings of fact and with its apparently careful approach to proper questions and with its conclusions which, in our view, it was perfectly entitled to reach on the findings of fact which it made, the tribunal’s decision, in our view, would be beyond sensible challenge. The question therefore is whether the tribunal’s findings of fact contain errors and omissions which vitiate its decision by making it clear that it did not consider aspects of the case and evidence which it ought to have done or misunderstood them so as to misdirect itself in law or made findings of fact which were perverse so as to make its decision perverse.

42.	Mr Hay’s detailed points were as follows. His first complaint was that although Mr Vaughn’s complaint of unlawful victimisation was based upon the fact of a report written by Mr Julius recommending that Mr Vaughn be subjected to a formal investigation into his failure to specify racial discrimination as part of his original grievance, Mr Julius was not listed as one of the respondents’ witnesses related in the preamble to the tribunal’s written decision. In fact other of the respondents’ witnesses in addition to Mr Julius were omitted from the tribunal’s list of witnesses and in our view this was clearly just a simple slip. It is quite clear from the body of the decision that the tribunal did consider Mr Julius’ evidence. It made many references to his investigation and report, which they thought was thorough, and in effect justified recommending that there be an investigation of the delay in Mr Vaughn’s complaint of racial discrimination. However, Mr Hay went on to say that the failure to refer to Mr Julius was symptomatic of the tribunal’s failure to take proper account of what Mr Hay described as a “pattern of behaviour” on the part of Mr Julius which was consistent with victimisation. Mr Hay made five particular allegations in this respect. 

43.	Firstly, he pointed out that Mr Julius failed to interview Mr Beaumont, who was the only witness cited and called by Mr Vaughn. Mr Julius, as is clear from the Chairman’s Notes of Evidence, was asked about this and said that he did not interview Mr Beaumont because Mr Beaumont could only have told him what Ms Duffy told him. Unless Mr Vaughn was actually present at the discussion with Mr Beaumont the value of what was said was limited. In our view this was an accurate statement of the position and we cannot see that Mr Julius can be faulted for not interviewing Mr Beaumont.

44.	Secondly, Mr Hay contended that even before he began his investigation, Mr Julius had formed and expressed a negative opinion of the way in which the appellant’s union representatives had handled his grievance. He referred us to paragraph 3.5 of Mr Julius’ witness statement which says that when a senior member of the respondents’ management sought Mr Julius’ advice on whether there should be an investigation, Mr Julius expressed the opinion that the matter should not have got as far as it did and that the trade union should have used the usual channels of communication with management in order to raise its concerns if they were as serious as were alleged. Mr Hay also pointed out that it appears from the notes of cross-examination of Mr Julius before the tribunal that he had said that the union was confrontational. All this, Mr Hay suggests, showed that Mr Julius was biased against Mr Vaughn from the outset. We cannot accept this. The criticism of the union in the paragraph of Mr Julius’ statement to which we have referred, was mild. Although he described the attitude of the union as confrontational, in more or less the same breath he said that he had never found Mr Vaughn to be personally confrontational. Whatever Mr Julius thought of the union’s attitude in respect of this particular case we cannot see any indication of him being biased so far as Mr Vaughn was concerned.

45.	Thirdly, Mr Hay says that the tribunal failed to take proper account of what Mr Hay describes as a false assertion by Mr Julius that he had interviewed Mr Vaughn on two separate occasions, namely 8th October and 29th October 1997, when, as Mr Julius said after some thought about the matter in evidence, he had in fact only interviewed Mr Vaughn on one occasion, namely 8th October 1997. But we accept the submission made by Mr Kenward, on behalf of the respondents, that the tribunal were entitled to treat this as no more than a error by Mr Julius arising from misinterpretation of a diary entry. All that Mr Julius was saying was that there had been one detailed interview and not, as he had originally thought from his diary, a preliminary interview followed by a detailed interview. 

46.	Fourthly, Mr Hay complains that Mr Julius justified criticism of Mr Vaughn and justified his recommendation of a formal investigation by referring to the absence of any satisfactory explanation for Mr Vaughn’s failure to specify race discrimination in his original grievance or at any stage before 13th August 1997, but on cross-examination Mr Julius accepted that he had not asked Mr Vaughn for an explanation of this alleged delay. It appears that the question of the delay was one of a number of matters which Mr Julius had intended to pursue with Mr Vaughn but which was not pursued. Therefore, Mr Hay says lack of explanation should not have been held against Mr Vaughn. However, it appears that from Chairman’s notes that the union, presumably Mr Vaughn’s behalf, had said that it did not want Mr Vaughn to be questioned in detail on certain matters which appear to have included the question of delay. In any event, all that Mr Julius concluded from the information, including lack of explanation before him, was that the matter should be investigated further, and the fact remains that no satisfactory explanation had been forthcoming from Mr Vaughn or from the union on his behalf, as to why he should delay in making the allegation of direct discrimination.

47.	Finally, Mr Hay complained in respect of Mr Julius’ evidence that under cross-examination Mr Julius agreed that his report questioned Mr Vaughn’s honesty and integrity. It is common ground that it was self-evident in the report that he questioned Mr Vaughn’s honesty and integrity, but again that was not a final determination. The report merely recommended further investigation. In any event, the tribunal in effect ultimately concluded that the criticism of Mr Vaughn was justified. 

48.	Having considered all five heads of particular complaint made by Mr Hay we do not consider that there is any ground for believing that the tribunal ignored a pattern behaviour on the part of Mr Julius which was consistent with victimisation.

49.	The second main area of complaint by Mr Hay was that the tribunal failed to record with sufficient particularity and therefore to consider and investigate the particular allegations of treatment by him of Ms Duffy, which was less favourable than her treatment of Mr Beaumont. The allegations which were made in some form or other at some stage or other of the proceedings were fourfold. 

50.	The first was that Ms Duffy invited Mr Beaumont to sit down and discuss his request for additional time, in his case to look after his aged parents, whereas she did not invite the appellant to sit down. It is worth noting that that allegation was not only not in Mr Vaughn’s Originating Application, it was not even in his witness statement. The first time it saw the light of day was when Mr Vaughn actually came to give evidence. His own account was that the interview of him by Ms Duffy or the discussion which they had was very short indeed, whereas Mr Beaumont’s lasted between 20 and 30 minutes. In our view, that alone was sufficient explanation as to why Mr Beaumont should sit down while Mr Vaughn should in fact remain standing, if that was the case. 

51.	The second allegation of discriminating treatment by Ms Duffy was that she was very sympathetic and friendly towards Mr Beaumont, whereas, it was said by Mr Vaughn, she was cold and abrupt towards him. The one matter appears in Mr Beaumont’s statement, the other appears in the statement of the appellant. Yet again, this did not appear anywhere in the details of Mr Vaughn’s Originating Application. It is clearly a matter where subjective views may count for more than they ought to.

52.	Thirdly, Mr Hay draws our attention to the evidence that Ms Duffy questioned Mr Vaughn as to whether he had made attempts to secure alternative care provision for his child, whereas, it is said, she did not ask Mr Beaumont whether he had made any attempt to secure alternative care provision for his elderly parents. Again, that did not appear in Mr Vaughn’s Originating Application and we cannot believe that it is a matter of any significance, nor need the tribunal have seen it as such.

53.	Finally, Ms Duffy spent 20 or 30 minutes, as we have already indicated, with Mr Beaumont discussing his request, whereas she only spent two to five minutes with the appellant. We see no magic in a direct comparison of time such as that; presumably nor did the tribunal, although it mentioned the difference of time very shortly in its decision. The length of a discussion obviously depends on what has to be discussed, the clarity of the explanation of the request, considerations which bear on it, and how easy the decision is to make. Ms Duffy had a particular reason to do with the staffing available to her for refusing Mr Vaughn’s request while allowing that of Mr Beaumont. We cannot see anything in those particular criticisms.

54.	Mr Hay’s third, main complaint was that the tribunal made a number of erroneous findings of fact on issues which he describes as “crucial” to the matter which fell for decision. 

55.	The first is that in subparagraph 3(o) of their decision the tribunal spoke of Mr Vaughn accusing Mr Maunder of validating Ms Duffy’s discrimination. It is common ground that that was an error on the part of the tribunal. Clearly insofar as there was any such accusation, it in fact referred to Mr Fitzhenry, but we see nothing more than an innocent slip of identification on the tribunal’s part which probably arose from the heading of Mr Vaughn’s allegation of discrimination. This referred to the actions of the “Head of Housing Management Services” who was Mr Fitzhenry and not Mr Maunder. Mr Fitzhenry gave evidence, Mr Maunder did not. It is unlikely that the tribunal made any real mistake of identity between the two. It is far more likely that they put the wrong name to the person holding that position in our view.

56.	Secondly, so far as this final head of complaint is concerned, Mr Hay criticises a part of the decision of the tribunal which said that through his union representative Mr Vaughn was complaining of the refusal of the request for reduced hours. In fact, the complaint appears in a letter dated 11th July 1997 from Mr Worrall to Ms Devine which reads as follows:

“Re: Grievance Procedure
I write to invoke Liverpool City Council grievance procedure on behalf of UNISON member Tony Vaughn. The grievance is in relation to Tony’s request for reduced working hours. See attached correspondence.”

	In our view, as in the view of the tribunal, that could not be taken to be a reference to more than a grievance over the refusal of the request for reduced working hours. There is no mention anywhere nor any intimation that Mr Worrall or Mr Vaughn was initiating a complaint of racial discrimination.

57.	Finally on this aspect of the case, Mr Hay leading on from that last point, criticised the tribunal’s decision that Mr Vaughn made a late complaint of discrimination. Quite accurately he points out that this part of the tribunal’s decision was in many respects fundamental to its ultimate decision. He argues that the complaint was not late and that it would be unfair to treat it as late when it came only a month or so after the dispute arose and when the respondents themselves could not get their grievance procedure together over the period between 11th July and 13th August 1997. But in our view the tribunal was perfectly entitled to find that the delay between 11th July and 13th August 1997 was significant in a sensitive area such as racial discrimination where they would no doubt expect the complaint to show early and promptly rather than after the delay which occurred in this case.

Conclusion

58.	We have listened carefully to all the points made by Mr Hay. We are grateful for the clear, reasoned and moderate way in which he has argued them. No tribunal can be expected to mention in its decision and to adjudicate upon every point which a party and his advisers consider to be important. Slips may be made in relation to matters such as listing witnesses called or mistaking one person in a respondents’ management for another. It is better of course that such slips are not made, but only if they are of significance, so far as a main issue is concerned, may they call the decision on that issue into doubt. In our view, none of the matters which Mr Hay has raised are individually matters of any substance so far as the tribunal’s ultimate decision was concerned, nor do they amount to a matter of substance when taken together. It may be that we have trespassed beyond the jurisdiction of this appeal tribunal in considering the merits of the detailed complaints as we have done. We have done that in fairness to Mr Vaughn and out of respect for Mr Hay’s submissions on his behalf. In the present case, in our view, the tribunal decided the facts which needed to be decided for the just disposal of Mr Vaughn’s complaint of racial discrimination and victimisation. No proper exception can be taken to those findings and upon them the tribunal was entitled to come to the ultimate decision which it did for the reasons which it gave. The reasons why which Mr Vaughn lost are clear from the tribunal’s written decision. The appeal against the rejection of his complaints must fail. Mr Hay agreed that if that was our conclusion he has no basis for criticising the order as to costs and that appeal must therefore fail also.

Application for costs

59.	Mr Kenward has made an application for the costs of the appeal to be awarded against Mr Vaughn on the basis that it was unreasonable for him to bring and press the appeal. 

60.	We do not accept that, in the light of the fact that at a preliminary hearing this tribunal, differently constituted, judged that the matter merited full argument. There is no suggestion that our colleagues on that earlier occasion were misled. Mr Kenward was anxious to make it clear that that is not suggested. In any event, sitting back and looking at the appeal in the round, we do not consider this is an appropriate case for costs to be awarded on the appeal. The original order for costs in relation to the proceedings before the Employment Tribunal, as we have already indicated, will stand.