Appeal No EAT/1103/00 		EAT/24/01 		EAT/913/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	    On 18 & 19 March 2002
Judgment delivered on 14 June 2002

Before
MR COMMISSIONER HOWELL QC
LORD GLADWIN OF CLEE CBE JP
PROFESSOR P D WICKENS OBE

EAT/1103/00
LONDON BOROUGH OF CROYDON	APPELLANT

MR S KUTTAPAN	RESPONDENT

EAT/24/01
LONDON BOROUGH OF CROYDON	APPELLANT

MR S KUTTAPAN	RESPONDENT

EAT/913/01
MR S KUTTAPAN	APPELLANT

LONDON BOROUGH OF CROYDON	RESPONDENT

Transcript of Proceedings

JUDGMENT
Revised

	APPEARANCES

EAT/1103/00 & EAT/24/01
For the Appellant	MR S DEVONSHIRE
(of Counsel)
Instructed by:
Messrs DMH 
Solicitors
40 High Street
Crawley
West Sussex RH10 1BW

For the Respondent	MR J QUIGLEY
(Solicitor)
Messrs Lawfords 
Solicitors
5 Richbell Place
London WC1N 3LA

	
EAT/913/01
For the Appellant	MR J QUIGLEY
(Solicitor)
Messrs Lawfords 
Solicitors
5 Richbell Place
London WC1N 3LA
	
For the Respondent	MR S DEVONSHIRE
(of Counsel)
Instructed by:
Messrs DMH 
Solicitors
40 High Street
Crawley
West Sussex RH10 1BW	

``
MR COMMISSIONER HOWELL QC
1	We have before us three appeals arising out of two separate sets of proceedings brought in the London South Employment Tribunal by Mr Sudarsanan Kuttapan, who is a British Asian of Indian origin, alleging racial discrimination against himself in the arrangements made between the Council and its incumbent Chief Executive, Mr David Wechsler, over the latter’s terms of employment in 1998 and 2000 when these were successively renegotiated.  

2	Mr Kuttapan is an assiduous campaigner on race relations and equality issues.  As is apparent from the papers before us he has been active in pursuing perceived shortcomings on the part of the Council by political means, such as tabling questions at meetings and other public activities, and has been involved in numerous sets of legal proceedings for alleged discrimination, both on his own behalf and as representative for others.  In pursuance of the aims he seeks to achieve, he does not shrink from making accusations of improper and dishonest conduct on the part of those he perceives as opposed to him (such as the Council and its officials in the cases with which we are concerned) or improper conduct and bias on the part of Tribunals themselves where adverse decisions are delivered: see the judgments of the Appeal Tribunal in Facey -v- Midas Retailers [2001] ICR 287 (Lindsay J), EAT/966/98 & 1137/98 27 February 2001 (Hooper J). ; Kuttapan -v- London Borough of Croydon and Others EAT/39/00, 11 March 2002 (Bell J).  

3	The importance, and the sincerity, of the underlying aim of promoting good equal opportunities practice, in general and in the London Borough of Croydon in particular, are not in any way in question in these proceedings.  What is in issue is the legitimacy of the method chosen by Mr Kuttapan to pursue it in these cases, by bringing proceedings under the Race Relations Act 1976 alleging the Council’s practice in employment matters to be discriminatory against ethnic minorities, and that he personally has suffered as a result.  Mr Kuttapan has no criticism of the Council’s published Equal Opportunities Policy which he accepts is an admirable document: his complaint is that the Council’s practices fall short of the high standards it has set itself. Where better to start in exposing shortcomings, and forcing the Council to throw posts open regularly to competition in which all have an opportunity of applying, than right at the very top, with the arrangements made with the Chief Executive himself?  Those then were the chosen subject of Mr Kuttapan’s attack.

4	Mr David Wechsler has been the Chief Executive of the Borough at all material times.  He has now over thirty years’ experience with the Council and is of proven administrative ability.  He was appointed to the post in March 1993 having previously been the Deputy Chief Executive, when a short-lived attempt to bring another Chief Executive in from outside following a competition in 1990 had proved unsuccessful.  On appointment, Mr Wechsler was given a five year fixed term service contract with provision for renewal on similar or different terms by mutual agreement.  Although Mr Wechsler had taken part in the competition in 1990 along with other candidates, there was no further competition held in 1993: he was simply appointed to fill the gap when the outside appointee departed prematurely at very short notice.  

5	The following year Mr Kuttapan opened up this front of his campaign, and eventually succeeded in putting a public question to the Council (whose control by then had changed hands) on 19 December 1994, suggesting that there had been discrimination against ethnic minorities in that Mr Wechsler, who was a white man, had been appointed in 1993 without an opportunity for suitable candidates of minority communities to apply for the job.  The reply was that although those who now formed the majority on the Council had been in favour of an open competition at the time, what had taken place had been within the exceptions to the Equal Opportunities Policy in the special circumstances of the previous Chief Executive’s retirement, and that the Council had full confidence in Mr Wechsler as Chief Executive.  

6	On 17 January 1997, in accordance with the terms of his contract, Mr Wechsler wrote to the Council confirming his willingness to continue in his post after expiry of the original fixed term. It is common ground that following this, on 16 April 1997, the relevant committee of the Council (the Policy, Economic Development and Employment Committee or “Pedec”) determined that his appointment should be continued beyond the end of the original five years on 31 March 1998 and not then terminated: though with the terms and conditions to apply to him from that date remaining to be renegotiated and agreed.  (Committee minute A55/97 of 16 April 1997, and Mr Kuttapan’s own written submissions dated 25 April 2000 to the Tribunal which heard his first Originating Application, at page 56 of appeal file EAT/1103/00).  

7	Mr Kuttapan, who remained unaware of this decision but knew when Mr Wechsler’s original five-year term was due to expire, wrote in early January 1998 to the Leader of the Council on the assumption that the position of Chief Executive would become vacant in March 1998.  He asked for assurances that a new Chief Executive would then be appointed strictly in accordance with equal opportunity policies, and indicated that he wished himself to apply.  Mr Kuttapan was at that stage unemployed.  He had previously been employed with the Council as a security attendant but this employment had come to an end in mid-1997, the circumstances of this already having been the subject of proceedings started by him on 23 June 1997 alleging victimisation.  Those proceedings, according to the Tribunal’s findings on page 29 of file EAT/1103/00, had been struck out at the end of 1997 but were reinstated after an appeal to the Appeal Tribunal. We are not concerned with them for the present purpose other than to note that they existed.  The response from the Council to Mr Kuttapan’s letters about the Chief Executive’s job was that it was not correct to say that there would be a vacancy at the end of March 1998, because the Chief Executive was not leaving.  

8	On 1 April 1998 it was reported to the Pedec Committee by the officer responsible for the renegotiation that agreement had been reached on the new contractual terms as to salary and otherwise for the Chief Executive to run from that date.  In fact however, as found by the Tribunal, there were some further negotiations that continued after that date, and the new contract effective from 1 April 1998 was not finally signed until 11 May.  The new terms included a substantial pay increase for Mr Wechsler and were expressed to run for a fresh fixed term of three years instead of five.  There were various other differences, noted by the Tribunal in paragraph 35 of their Extended Reasons of 25 July 2000 in case EAT/1103/00.  

9	In the meantime, Mr Kuttapan had issued his Originating Application in the first set of proceedings with which we are directly concerned, presented on 6 April 1998.  In these he alleged racial discrimination and victimisation against himself on the part of the Council in relation to the appointment of the Chief Executive.  The detailed grounds of his complaint annexed to the IT1 form (which in fact appear only at pages 14a-14b of the later file EAT/24/01 relating to the subsequent decision of the same tribunal on compensation) alleged that Mr Kuttapan was very much interested to apply for the position of the Chief Executive of the Croydon Council and was an Asian of Indian origin.  The Council, it was asserted, had however deliberately denied him the opportunity to apply and to be appointed as the Chief Executive.  He claimed that:
“There was a reasonably good chance for me to be selected for the position of the Chief Executive, provided the post was advertised and appointment was made fairly.”

10	That last assertion was however quite contrary to the true fact, which was that (as agreed by Mr Kuttapan later during the course of the Tribunal proceedings) he could never had been considered a suitable candidate for actual appointment to this post.  He did not have the qualifications, experience or proven administrative ability to take on the running of a major London borough with a multi-million pound budget, and no reasonable person could have seriously suggested or considered for a moment that he had.  

11	The Originating Application then went on to make points about the inadequate numbers of women and Asians employed in senior positions at the Council and to criticise it for deciding not to advertise the position of Chief Executive but to allow Mr Wechsler to continue.  It referred to Mr Wechsler as: 
“not only incompetent and irresponsible, but also selfish, devious, crooked, 
cunning and untrustworthy”. 

None of those allegations was ever substantiated or (so far as can be seen from the Tribunal’s Statement of Reasons) pursued in the proceedings at all. That was perhaps because of the disapproval quite rightly expressed in the judgment of the then President of the Appeal Tribunal on 18 January 1999 (on an earlier appeal relating to an application by the Council to strike the proceedings out) of the use of such indiscriminate and abusive language.

12	The proceedings on this Originating Application did not come on for full hearing at the Employment Tribunal until 12 July 1999, and were not concluded until April the following year.  The Decision of the Tribunal, recorded in the Extended Reasons document sent to the parties on 25 July 2000 at pages 25 - 38 of file EAT/1103/00, was to uphold Mr Kuttapan’s complaints on the ground that the Council:
“… in failing to open to competition the vacancy which existed for a Chief Executive in May 1998 discriminated against the applicant, Mr Kuttapan, contrary to the provisions of s.4(1)(a) of the Race Relations Act 1976”.

13	The Tribunal reached that conclusion by holding that the Council’s failure to announce the existence of a vacancy and hold an open competition to fill it after 31 March 1998, despite Mr Kuttapan having indicated his wish to apply and be considered, had amounted to both direct and indirect discrimination against him.  It was also victimisation, by reference to his having previously brought proceedings against the Council under the Race Relations Act 1976 and being a “known thorn in its side” on such matters.  They so held on the basis that there was a “vacancy” in the position of Chief Executive from 1 April to 11 May 1998, in view of the gap until a new contract had been actually signed even though during that period Mr Wechsler had remained in post and continued to work on his old terms; and that the existence of this vacancy was sufficient to bring into operation section 4(1)(a) of the 1976 Act, making it unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another in the arrangements he makes for the purpose of determining who should be offered that employment.  The tribunal further recorded that they considered, as the decision not to put Mr Wechsler’s job out to open competition had been taken “in private caucuses” and “there was no dispute that the Respondent’s organisation was racist in its operation” since with one exception black or minority ethnic people had not reached director level, it was proper to draw an inference of discriminatory conduct on racial grounds.  They held that a discriminatory requirement “to be a member of the almost all-white management team of the Respondent, or alternatively, to be Mr Wechsler” had been applied, with which it was not possible for Mr Kuttapan to comply.  There had thus been a difference in race and a difference in treatment between Mr Kuttapan who was Asian but not considered, and Mr Wechsler who was white and had been appointed without competition for the second time: paragraph 60 of their reasons. 

14	Referring to the decision of another Tribunal in Coker and Osamor v Lord Chancellor and LCD [1999] IRLR 396, they identified the loss to Mr Kuttapan of the opportunity of applying for the position of Chief Executive as detrimental treatment suffered by him, so that there had been (as we read their decision) both direct and indirect discrimination against him within section 1 of the 1976 Act.  On the basis of the same loss there had also been discrimination by way of victimisation of Mr Kuttapan within section 2 in view of the Council’s knowledge of him, his previous Race Relations Act proceedings and the fact that he had expressed interest in the Chief Executive post.  The first appeal to us on file EAT/1103/00 is by the Council against that decision on liability.

15	Within a short time after that decision was issued on 25 July 2000, Mr Kuttapan began the second set of tribunal proceedings with which we are concerned, by a further Originating Application dated 7 August 2000.   These concerned a further decision taken by the Council on 8 May 2000 to review or renew the Chief Executive’s contract, which had been formally accepted by him.  Mr Kuttapan alleged that this was a further instance of discrimination and victimisation on racial grounds against himself by the Council, which his fresh application said:
 “is very clever and crafty and … would adopt different tactics to pervert the course of justice or deny the Tribunal the opportunity to find out the fullest facts”. 

His contention was that once again he had been deprived of the opportunity he sought of applying for the post of Chief Executive, and thus ensuring that the Council observed the terms of its own Equal Opportunities Policy statement in the course of a full open competition process.  

16	Those proceedings too were resisted by the Council, on the ground that no vacancy had arisen for the Chief Executive position in 2000 any more than it had in 1998.  There had been a decision to renew the Chief Executive’s contract in May 2000, but that had been taken prior to the issue of the first Tribunal’s Decision upholding the earlier complaints of discrimination, and the Respondent had not discriminated against or victimised Mr Kuttapan in any way at all.  At or about the same time, the Council lodged its Notice of Appeal dated 1 September 2000 against the first Tribunal’s findings on discrimination and the disputed 1998 vacancy issue.  

17	On 12 September 2000, the same Tribunal conducted a hearing on the remedy issues arising from those findings. On 30 October 2000 they issued their further decision with Extended Reasons on those issues, awarding Mr Kuttapan the sum of £17,500 compensation.  That sum was entirely attributable to the injury to feelings they held him to have suffered, in not having the opportunity of pursuing an application for the post of Chief Executive in March or April 1998.  No award was made for any actual financial loss, since as the Tribunal expressly recorded in paragraph 2 of their Extended Reasons, it was conceded that Mr Kuttapan had never contended that he would have been appointed to the post.  As indicated above, that was an inevitable concession: there was never any real question of Mr Kuttapan being a suitable candidate for actual appointment to such a post.  The second appeal before us on file EAT/24/01 is by the Council against the amount of that award.

18	In April 2001, Mr Kuttapan’s second set of proceedings alleging discrimination against him in the arrangements made to extend the Chief Executive’s contract in May 2000 came before a differently constituted Employment Tribunal, for a hearing which occupied several days from 23 to 27 April 2001.  This Tribunal took a different view of the “vacancy” issue, on the facts of the case before them.  Those were that, as they pointed out, there was no question of a time interval between two contracts arising in May 2000.  They held that as there had not at any point in that year been any question either of the Respondents taking or implementing any decision to open the position up to competition, there were no “arrangements” for determining who should be offered a particular employment such as to bring the case within section 4(1)(a) Race Relations Act 1976.  The third appeal before us, on file EAT/913/01, is by Mr Kuttapan against that decision, set out in Extended Reasons sent to the parties on 13 June 2001.

19	Separately and in any event, the second tribunal also held in the light of their analysis of the facts (and the intervening judgment of the Appeal Tribunal on 17 January 2001 in Coker and Osamor v Lord Chancellor  [2001] IRLR 116, which reversed the tribunal decision to which the first Tribunal in Mr Kuttapan’s case had referred) there had not been either direct or indirect discrimination against Mr Kuttapan even if the post of Chief Executive were to be treated as having become vacant for this purpose.  Nor had there been victimisation against him. This was because on his own case he would not have been appointed even if he had been able to compete. On that basis, which as the second Tribunal recorded was “merely a statement of uncontroversial fact”, no detriment or less favourable treatment had been demonstrated and the complaints were bound to fail, regardless of the question whether there was a “vacancy”.  

20	The appeal by the Council against the first Tribunal’s Decision on liability was argued before us on its behalf by Mr Devonshire on several grounds, but it is only necessary to refer to two of them to explain the conclusions we have reached.  First it was said that the Tribunal had  misdirected themselves by holding that there was a “vacancy” such as to bring the continuation of Mr Wechsler’s appointment in 1998 within the scope of section 4(1)(a) of the 1976 Act, when there was never in fact any break in the continuity of his appointment as Chief Executive, or any point at which the Council had been without a Chief Executive on or after 1 April 1998.  That was so even though the improved package of terms and conditions to apply to his continuing service after that date had remained the subject of negotiation until 11 May.  Secondly, and in any event, the first Tribunal had erred in the approach they adopted to the question of whether Mr Kuttapan had suffered any detriment or less favourable treatment to entitle him to bring proceedings before the Tribunal for the “loss of opportunity” he relied on as the discriminatory act against him: they had wrongly failed to address this question at the liability hearing, and could only have reached the same conclusion on it as the second tribunal.  

21	Further, or alternatively, the Council appealed against the subsequent Decision of the same Tribunal to award £17,500 as compensation for injury to feelings, on the grounds that they had failed to identify a proper basis of causation between the acts of discrimination they found and the emotional and other difficulties they identified; and that the amount awarded was in any event so excessive as to be unreasonable.  

22	Mr Kuttapan’s separate appeal, against the second Tribunal Decision on liability, was based on the contention that the second Tribunal had conversely misdirected themselves on the vacancy point.  They should have held that a question of offering employment, sufficient to bring the case within section 4(1)(a), arose in the course of what happened about the Chief Executive’s contract in May 2000.  Somewhat puzzlingly in view of the Tribunal’s express rejection of the complaint on the independent ground of there being no discrimination in any event, that was the sole ground out of those in the original Notice of Appeal that was directed at the preliminary hearing on 28 November 2001 to proceed to a full hearing before us.  As Mr Devonshire submitted, that seemed to leave little point in the appeal as all other grounds of challenge to the tribunal’s decision had been rejected: see the Appeal Tribunal’s judgment given by His Honour Judge Levy QC at pages 18d-e of appeal file EAT/913/01.  However pursuant to the order made on that date the grounds of this appeal were amended to the single ground set out in the amended Notice of Appeal dated 13 December 2001, which is all that is before us, there having been no appeal against the judgment on the preliminary hearing and no application to us to extend the scope of the amended Notice of Appeal.  In fact however, Mr Quigley on behalf of Mr Kuttapan did helpfully address us on all the questions of principle on the “vacancy” and “detriment” points which were common to both Tribunal Decisions.  

23	In our judgment, the Council’s appeal against the first Tribunal Decision on liability is entitled to succeed, on the single and unanswerable ground that the Tribunal materially misdirected themselves in failing properly to address the question of whether Mr Kuttapan had suffered any detriment, or less favourable treatment on a proper like-for-like comparison. This was something he had to show, in order to entitle him to bring proceedings before the Tribunal at all for the discrimination he alleged had been committed against himself in the acts or omissions of the Council about which he complained.  Specifically, the tribunal made a material error of law, invalidating the whole of their decision, when as recorded in paragraph 52 of their Extended Reasons they rejected the argument of the Council that there was no detriment to the Applicant in not being considered for the post of Chief Executive although he was not remotely appointable, saying:
“We find that despite the reliance in this respect on the decision of another Tribunal in the Osamor case, such an argument conflates the questions of liability and remedy.  The applicant was entitled to complain of the respondent’s actions if they prevented him applying: the question of whether he is appointable goes to remedy.”

24	That in our judgment was plainly wrong, since the question of whether the Applicant had in fact suffered any discrimination in the acts complained of is an essential part of determining whether there is any liability to him at all.  As has now been held by not only the Employment Tribunal which dealt with the Osamor case at [1999] IRLR 396 paras 78 - 79, but also the Appeal Tribunal (on this point we think unanimously) dismissing the cross-appeal of Ms Osamor at [2001] IRLR 16, paras 41 - 47, and confirmed by the unanimous Court of Appeal at [2002] IRLR 80, paras 49-50, there can be no question of a person suffering a “detriment” for this purpose by being deprived of the opportunity of going through the motions of making what is not a genuine job application at all, but one which has no chance of success and is made solely for the ulterior purpose of raising equal opportunities issues. 

25	That this would have been the real purpose of making such an application, in Mr Kuttapan’s case as in Ms Osamor’s, was very fairly made clear by Mr Quigley when he explained that Mr Kuttapan would not really have been making it with a view to obtaining an offer of employment, and this was not the loss of which he was complaining: what he had been seeking, and been deprived of, was an arena to put the Council through its paces, by such means as requiring it to answer detailed race relations questionnaires and pursuing equality issues in any other way he could when his application was rejected, as it inevitably would have been.  In our judgment, as the decisions at each level in the Coker and Osamor cases to which we have referred show, an applicant’s disappointment at not having the opportunity to do this is not a detriment of the kind that enables a person to bring private proceedings under the race relations legislation on the basis that there has been discrimination against him or her as an individual.  

26	This applies not only to the question of whether any “detriment” can be shown to justify a claim of indirect discrimination under section 1(1)(b) of the 1976 Act, but necessarily also to the question whether it is possible to show that there has been any “less favourable treatment” for the purposes either of direct discrimination under section 1(1)(a), or victimisation under section 2(1).  For both of those purposes, a proper like-for-like comparison in accordance with section 3(4) is required before an act of discrimination can be shown. And for that purpose, a complainant who is not remotely suitable for appointment cannot properly be compared with a person who is.  The Tribunal’s apparent reliance on a direct comparison between Mr Wechsler and Mr Kuttapan for the purpose of identifying discrimination (see paragraph 60 of their Extended Reasons) thus simply failed to give effect to the requirements of the legislation.

27	 The first Tribunal therefore erred in our judgment in the way they addressed the questions of detriment and less favourable treatment, relevant for the purposes of both direct and indirect discrimination, and victimisation.  Had they done so properly, the only conclusion they could have come to as a reasonable Tribunal on the undisputed facts was that Mr Kuttapan’s complaints of having personally suffered discrimination inevitably failed under all three heads.  That was the conclusion in fact reached by the second Tribunal, on the parallel set of complaints about the Council’s further actions in May 2000; and we can only say, having read and re-read the Decisions of both Tribunals, that we regard the second Tribunal’s analysis of both the facts and the law in their Extended Reasons of 13 June 2001 at pages 19 - 41 of file EAT/913/01 as by far the better focused and more correctly reasoned, and we agree with it in all material respects.  

28	Insofar as it is necessary for us to express a conclusion on the “vacancy” point, we again prefer the analysis of the second Tribunal.  We have not been persuaded that there was any error of law in their conclusion that on the factual situation with which they were concerned in May 2000, the question of the Council having wrongfully excluded Mr Kuttapan or anyone else from the opportunity of applying to be offered the employment of Chief Executive with the Council for the purposes of section 4(1)(a) of the 1976 Act did not arise, since there was no point at which that employment fell or was to fall vacant in the year 2000.  

29	The guidance given by the former President in the judgment of the Appeal Tribunal of 18  January 1999, on the earlier striking-out application in this case to which we have already referred, was of course considered by both Tribunals, and was the subject of argument before us.  It suggests that the proper scope of section 4(1)(a) is limited to the specific availability of a particular employment which is vacant in the sense of being currently unoccupied, or will become vacant in the sense that the present occupant will be ceasing to hold it.  Thus despite the apparent breadth of the word “arrangements” in section 4(1)(a), the use of “that employment” throughout the subsection implies the existence of a particular post which is (or at the material time will be) unoccupied, so that a decision has to be made as to whom to offer it.  

30	As was said in the judgment by Morison J on 18 January 1999, at pages 5F - 6D of the transcript: 
“It seems to us in principle that section 4 of the Race Relations Act is looking at applications for a specific post, and discrimination in relation to such applications.  By referring to specific applications, the Tribunal will be well aware that section 4(1) is not to be evaded by a range of tactics of a discriminating prospective employer.  Thus a refusal to consider an application at all, or the exclusion of applicants from a particular area, or telling potential applicants not to apply for the job, or telling an applicant that the job is already filled when it is not or a refusal to interview a person or to provide [sic] a biased interviewing panel, may all be circumstances in which the person or complainant can be said to have made an application for a job, even if no such full application has been made.
It seems to us that there needs to be a specific vacancy, either immediately open or one which is available in the reasonably near future.  It would be sufficient for example to enable section 4 to apply, for an applicant to make an application for a job which is due to become available in say the forthcoming twelve months and if there was discrimination in the way that that application was dealt with, it seems to us that section 4 would apply.  The question for the industrial tribunal may be whether having regard to the evidence given by the applicant, it can be said that he was an applicant within the extended meaning that I have indicated as to the ambit of section 4 and if so, whether there was a vacancy within the meaning that I have indicated at the time when the application was made.”

31	In our judgment, the facts before the first Tribunal as to what happened in 1997 and 1998 took the case outside that formulation of the scope of section 4(1)(a), because the decision that had been taken on 16 April 1997 to continue the Chief Executive’s appointment beyond the expiry of the period to which his existing terms and conditions applied on 31 March 1998 meant that the post was not due to, and did not in fact, become open and unfilled on 1 April 1998.  Employment in the position of Chief Executive to the Council remained occupied by Mr Wechsler, and did not fall vacant so as to be offered to him or anyone else on the basis of a “vacancy” on or following 1 April 1998.  That was so even though the terms and conditions on which he was continuing to serve after that date remained subject to negotiation, and (as found by the first Tribunal in paragraph 35 of their Extended Reasons) his old terms continued de facto for the interim period until the re-negotiation was completed.  That appears to us to accord with the reality as any other conclusion would have involved Mr Wechsler’s employment being terminated on 31 March 1998, when in fact it was not terminated but continued.  

32	We would however desire to reserve for further consideration in a case where it is actually material the question of whether the broad formulation of section 4(1)(a), and particularly the use of what appears to us to be the deliberately wide expression “arrangements”, is necessarily limited in all cases by the requirement of a “vacancy” as formulated in the passage cited from the judgment of Morison J.  As Mr Quigley was right to point out, the word “vacancy” does not actually appear in the section at all, and it must ultimately be for the Tribunal to determine on the particular facts of the case before them whether an employer has made “arrangements” with regard to the offering of some employment which have had a discriminatory effect.  Whether arrangements of a more general nature, divorced from an identifiable vacancy, fall foul of section 4(1)(a) or what the precise scope of the “range of tactics” referred to by Morison J as not evading the section may be, are better left to be considered in another case where the outcome is actually affected.

33	For the reasons already given we accordingly allow the Council’s appeal against the Decision of the first Tribunal on liability, and substitute what we are satisfied is the only proper decision a reasonable Tribunal could have given on the undisputed facts: namely that since Mr Kuttapan was never a suitable candidate to be considered for appointment as Chief Executive of the Council, all of his complaints of discrimination in not being afforded the opportunity to apply for that position in early 1998 are dismissed.  It necessarily also follows that the Council’s appeal against the subsequent award of £17,500 compensation by the first Tribunal is allowed as well, and that Decision too is set aside.  Mr Kuttapan’s separate appeal against the Decision of the second Tribunal dismissing his further complaints about the Council’s actions in May 2000 fails, as there was no material error of law in that Decision.

34	We endorse what was said in paragraph 35 of the second Tribunal’s Extended Reasons about the proper purposes for which complaints of racial discrimination may be brought by individuals before Tribunals under the Race Relations Act 1976.  The rights that Act confers on individuals to bring complaints are limited to cases where the complainant has himself or herself suffered actual discrimination within the terms of the legislation.  It is a misuse of the overburdened Tribunal machinery for an individual, however well intentioned, to use it merely as a means of pursuing some separate agenda or campaign, especially where inflammatory and abusive allegations are made under the protection of the tribunal procedure, and tribunals can quite properly consider exercising their powers to control such misuse.