Appeal No. UKEAT/0151/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 August 2004
Judgment delivered on 21 September 2004

Before
HIS HONOUR JUDGE ANSELL
MR K EDMONDSON JP
MR J MALLENDER

THE COMMISSIONER OF POLICE OF THE METROPOLIS	APPELLANT

MRS THERESA ABBOTT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS S McKIE
(of Counsel)
Instructed by:
Metropolitan Police Service
Directorate of Legal Services
Wellington House
67-73 Buckingham Gate
London SW1E 6BE	
For the Respondent	MR R PIRANI
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker Solicitors
Swinton House
324 Grays Inn Road
London WC1X 8DB	

SUMMARY

Sex Discrimination

Burden of proof, primary findings.  Did burden shift?  Was burden discharged?  Whether to remit to same or different Tribunal.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal from a decision of an Employment Tribunal who in a decision promulgated on 17 December 2003 unanimously decided that the Respondent could amend her Originating Application by adding a complaint of victimisation and went on to find that she had succeeded in that complaint, namely that she had been victimised by the Appellant, contrary to section 4 (1) of the Sex Discrimination Act 1975.

2.	The Respondent also claimed unlawful sex discrimination and although there is no formal finding at the commencement of the decision, paragraph 27 (a) of the Decision would appear to dismiss that claim.

3.	We should point out that the bulk of the evidence was heard as long ago as August 2001.  The case returned to complete the evidence and for final submissions on 22 October 2001, but on that date the case was stayed pending the decision in a number of cases relating to the liability of Chief Constables for the acts of discrimination perpetrated by one Constable upon another.

4.	Following the decision of the Court of Appeal in Baskerville v Chief Constable of Kent [2003] EWCA Civ. 1354 the Appellant conceded that the acts complained of by the Respondent in this case were done as agent of the Appellant and the final part of the hearing took place on 15 August 2003.

5.	This appeal primarily concerns the shifting burden of proof under section 63A of the Sex Discrimination Act 1975, which section came into force on 12 October 2001, i.e. whilst this case was still being determined.  But it is agreed that that new section does apply to these proceedings.  However, the decision has been written without the Tribunal having the opportunity to consider a number of the recent cases on section 63A, since, when the case came back for further hearing in August 2003 it was only to deal with the issue of the liability of the Commissioner of Police in the light of the Baskerville decision.  Although the decision in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 had been delivered in June 2003, no further submissions were sought or made by Counsel in relation to section 63A when the case returned in August 2003.

6.	The facts, as found by the Tribunal, were that the Respondent was a serving police officer and had been since joining the Metropolitan Police on 5 July 1993.  She was successful and well thought of by her superiors and in 1998 gained the certificate of competence as an accredited investigator.

7.	On 26 February 1998 she had requested a transfer from the Fulham division where she was then working after an incident in which she refused to give a lift home to another police officer who had been drunk and abusive, following which she complained of bullying and sexual harassment.  She was transferred to Staines police station but did not operate there as an accredited investigator.  Following boundary changes she was seconded to the Surrey Police from September 1999.  This was due to last until August 2001.  Her performance review for the period July 1999 to February 2000 was ranked as 1 – the highest possible assessment.

8.	In the summer of 2000 the Respondent decided to make application to join a Detective Constable Development Programme which was due to commence in November 2000.  The selection process for this programme is in several stages, the first of which is for the candidate to complete an application form and, if considered suitable, he or she can then proceed to a written assessment, after which there were further stages.

9.	On the application form candidates were required to provide evidence of their performance in four skill areas: the investigation of reported crime, intelligence led policing, the collation of evidence and police diversity.  The forms had to be supported by their line manager and a Detective Inspector.

10.	The process did provide for an appeal procedure which was to be allowed on the following grounds “whether there are specific concerns about the running of the actual assessment process; and whether a candidate can provide evidence that they have not been given an equal opportunity compared to other candidates”.  The Respondent had some knowledge of the process since earlier in 2000 she had assisted her husband who had made a similar successful application to join a programme.

11.	The Respondent obtained an application form, together with instructions.  The form required the candidate to provide two examples of performance in each of the four skill areas and those examples were to be no more than 3 years old, unless there were exceptional circumstances.

12.	The senior management team who were to determine the application were to apply certain criteria to determine whether the candidate should be recommended to attend the next stage, namely the written assessment.  There were 3 mandatory criteria and 11 non-mandatory criteria, all save one of which concerned the skill area examples.  In order to be selected the candidate had to satisfy all the mandatory criteria and the majority of the non-mandatory criteria.  The panel were given a 7-point checklist when considering the application form.

13.	Before completing the application form the Respondent met Sue Coles who is a Personnel Manager of the Respondent with experience in recruitment and selection procedures.  She told Ms Coles that she had significant experience in detective work during her posting with Fulham CID and asked whether she might be permitted to refer to examples of her work that were more than 3 years old because her main experience had been against when she was with the CID in Fulham.  The Tribunal then continued:

“The Applicant explained that an incident had occurred in the autumn of 1997 when she refused to give a lift home to another officer who had been drunk and abusive.  She had reported the incident as a result of which she was subjected to bullying and harassment.  She had made complaints about her treatment and eventually applied for a transfer.”

14.	Whereas normally the senior management team panel who would determine the application would come from the Applicant’s own division, because she had been seconded to Surrey the panel would consist of two members of the Personnel Department.  Sue Coles indicated to the Respondent during the course of their meeting that it would probably be inappropriate for her to sit on the panel.

15.	On or about 20 August the Respondent was informed by Sue Coles that in relation to the skills area examples permission had been sought from Chief Superintendent Bamber that only half the examples had to be within 3 years.  Sue Coles had also made contact with Detective Chief Inspector Ferguson who had been at Fulham Police station at the relevant time and who had responded to Sue Coles with a memorandum which explained that the circumstances of the incident at Fulham being of “a complex and sensitive nature and had no bearing upon the Applicant’s competence as a CID officer”.

16.	The Respondent duly completed the form by 30 August setting out two examples in each skill area, which examples were verified by her line manager, who described her as “a strong candidate for entry into this development programme” and “a professional and effective investigator”.  A similar, highly complimentary report was given by Chief Inspector Whyte.

17.	The management team assessing the application did indeed consist of both Sue Coles and Chief Inspector Reed, another member of the Personnel Department with 22 years uniformed operational experience.  They considered the applications separately and then met and applied the criteria for selection.  As far as the mandatory criteria were concerned, the Respondent fulfilled all 3 criteria; and as far as the non-mandatory criteria were concerned, the panel’s view was that she satisfied the criteria in 4 cases, but did not satisfy them in 6 cases and they were unable to determine whether she satisfied them in 1 case.

18.	Chief Inspector Reed had been told by Sue Coles that there were exceptional circumstances resulting in the Respondent leaving Fulham Police station and in evidence Chief Inspector Reed stated that he was aware of the substance but not the details of the complaints made by the Respondent that eventually caused her to leave.

19.	Their overall conclusion was that the evidence produced did not closely reflect the skills area definitions as outlined in the instructions and they also decided there was little supporting evidence from her line manager and too little evidence provided to support the assertion that she was an effective communicator.  In consequence they were not able to recommend her for the next stage in the programme.  Sue Coles in particular felt that the Respondent had failed to present examples in a way that demonstrated the skills areas.  Inspector Sue Warren of the Surrey Police working at Staines had supported the application and, having spoken to Sue Coles, was informed in a memorandum from her that “it was not the age of her examples that were the problem but rather the way she presented them.”

20.	The Respondent not unnaturally was aggrieved with the result and prepared a letter to Inspector Warren.  She was unhappy that neither of the members of the panel had any personal knowledge of her and referred to the fact that Ms Coles was in possession of sensitive information concerning the circumstances in which she was transferred from Fulham Police station which, in her view, disqualified Ms Coles from sitting on the panel.  She also referred to a telephone conversation between Inspector Warren and Chief Inspector Reed that had occurred in her presence, during which it was reported that Chief Inspector Reed had stated that if the application had been marked at a divisional level, as was the normal practice, it would probably have gone through.

21.	The Respondent appealed the decision and the appeal was heard by Phillip Denyer, a member of the Personnel Department.  The appeal was dealt with by reference to the documents only and Mr Denyer did not ask to see the Applicant or discuss the case with anybody else.  The Respondent had repeated the complaints that she had made to Inspector Warren.  Mr Denyer made no attempt to discover the nature of the sensitive and confidential information, but his assessment was that the application failed on its merits.  He refused the appeal saying that “I am satisfied with that the P7 panel was appropriate and that the panel acted in accordance with the instructions for the selection procedure.”

22.	Thereafter the Respondent wrote to Chief Superintendent Bamber who agreed to review the application.  The Respondent’s letter dated 26 October 2000 expressed her grievances as to the manner in which the application had been dealt with and also enclosed copies of three successful but anonymous applications for comparative purposes.  Although this was not disclosed one of the applications was in fact the successful application of the Respondent’s husband and had been written by the Respondent earlier in the year.  Chief Superintendent Bamber was very concerned that 3 anonymous applications had come into the Respondent’s possession.  His view was that had he been making the decision originally on balance he would not have recommended her for the next stage of the programme, although it was a close run thing.  He felt that the quality of her form, despite its similarity with one other form, did not match the quality of the other forms.

23.	As a result of that meeting with Chief Superintendent Bamber the Respondent became ill with depression and has not returned to work, either at Staines or at her new post.  We were told by her Counsel that she remains quite unwell.

24.	The Tribunal’s conclusions were set out in paragraph 27 as follows:

“(a)	The procedure adopted by the Respondent in relation to the application for entry upon the DCDP and the process by which her application was assessed was not less favourable treatment of the Applicant as the procedure was applied equally to male officers on secondment 
(b)	The decision of the panel not to allow the Applicant, whose application was fully supported by senior police officers and whose performance in the police force was highly regarded, to sit a written assessment, the result of which determined whether she Was admitted to the training programme could amount to unlawful sex discrimination by way of victimisation in the absence of proof to the contrary.  She had made complaints of sexual harassment while at Fulham Police Station and such complaints amounted to allegations of unlawful sex discrimination.  The panel knew that she had done so.
(c)	The Tribunal is not satisfied with the explanation given by the Respondent upon whom is the burden of proof: 
(i)	Ms Coles' conclusion that the Applicant should not be allowed to sit the assessment was principally by reference to the manner of presentation of her application when the Applicant had already been heavily involved in writing the narrative of her husband's earlier application -an application that had succeeded
(ii)	Chief Inspector Reed expressed the view that had her application been considered within the Division to which she was seconded, she would have been accepted on to programme
(iii)	The Applicant was strongly supported by her line manager and her Chief Inspector
(iv)	The criticism of her application was nit picking
(v)	At no time after her application was refused did the Respondent offer the Applicant practical help and guidance and encouragement to re-apply for the next programme 
(vi)	Mr Denyer made no proper enquiries into the 'sensitive information' referred to in grounds of appeal; he did not conduct an interview with the Applicant before making his decision; when he did speak to the Applicant he did not review his earlier decision but merely demonstrated his view by indicating that he trusted the panel and the Applicant did not 
(vii)	Chief Inspector Bamber refused to disturb the earlier decisions and appeared to be more concerned that the Applicant was in possession of other candidates' application forms and that there may have been collusive activities than to determine the review on the merits 
(viii)	The Applicant was marked down because the application lacked explanations from the Applicant as to why she had acted as she did - when the instructions did not state that such explanations were required.
(d)	In the absence of proof from the Respondent that the refusal to allow the Applicant to sit the written assessment was not an act of unlawful discrimination the Applicant's complaint of victimisation succeeds.”

25.	On behalf of the Appellants Ms McKie argues firstly that the Employment Tribunal erred by misapplying section 63A of the Sex Discrimination Act 1975.  That section provides that:

“(1)	This section applies to any complaint presented under section 63 to an employment tribunal.
(2)	Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -
(a)	has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or
(b)	is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.”
26.	She submits that before the Tribunal looks to an employer for an explanation under this provision the employee must show facts from which a Tribunal could conclude, in the absence of an explanation from the employer, that sex discrimination had occurred.  Before the burden shifts these facts may arise from inferences drawn from primary facts and she refers to the guidance that we set out in paragraph 25 of Barton v Investec as follows:

“25	We therefore consider it necessary to set out fresh guidance in the light of the statutory changes: 
(1)	Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of Part II or which by virtue of s.41 or 42 SDA is to be treated as having been committed against the applicant.  These are referred to below as 'such facts'. 
(2)	If the applicant does not prove such facts he or she will fail. 
(3)	It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
(4)	In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5)	It is important to note the word is 'could'.  At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them. 
(6)	These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s. 7 4 (2) (b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74 (2) of the Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.
(7)	Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to s.56A (10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. 
(8)	Where the applicant has proved facts from which inferences could be drawn that the respondents have treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent. 
(9)	It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act. 
(10)	To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. 
(11)	That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question. 
(12)	Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”

27.	Principle (10) in Barton has recently been amended by this court in Chamberlain Solicitors v Empokpae (UKEAT/0989/03), following guidance given by the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572, so that where discharging its burden it is necessary for a Respondent to prove on the balance of probabilities that the treatment was not significantly influenced by grounds of sex.

28.	We would only comment that the French version of the Burden of Proof Directive (97/80/EC) which led to the passing of section 63A speaks of “l’absence du toute discrimination fondée sur le sexe, soit directement soit indirectement”, thus speaking of the absence of discrimination.  However, in the light of Nagarajan, principle (10) in Barton must be amended.

29.	Ms McKie therefore submits in the light of these authorities the burden of proof only shifts to the Respondent after an Applicant has shown (a) less favourable treatment than an actual or hypothetical comparator and (b) the circumstances of the unfavourable treatment were such as to properly permit the drawing of an inference that the less favourable treatment was on the grounds of the complainant’s sex.  She submits that the Tribunal’s decision makes no proper reference to either less favourable treatment or a hypothetical or other comparator and gives no clear indication as to the primary facts and inferences found which gave rise to the shifting of the burden – though they clearly indicated that the burden had shifted.  She also argues that the Appellant’s explanation, namely relating to the proper marking of the application form, provided a complete answer for the rejection of the Respondent and in those circumstances the burden should not have shifted.

30.	For the Respondent Mr Pirani argues firstly that there has to be an element of flexibility in the way Tribunals are able to deal with discrimination.  As Lord Nicholls said in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 at paragraph 8:

“8	No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  The two issues are intertwined.
9	The present case is a good example.  The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to.  Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors.  Unlike her, they retained their counselling responsibilities. Is this comparing like with like?  Prima facie it is not.  She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not.  This might be the reason why she was treated as she was.  This might explain why she was relieved of her responsibilities and they were not.  But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was.  It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations.  If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10	I must take this a step further.  As I have said, prima facie the comparison with the two male chief inspectors is not apt.  So be it.  Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated?  But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was.  It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was.  Was it grounds of sex?  If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not.  Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue.  And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11	This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12	The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.”

31.	He contended that the Tribunal at paragraph 24 of the Decision had referred to the effect of section 63A and continued in paragraph 25 as follows:

“25.	In Chief Constable of Yorkshire v Vento [2001] IRLR 124 the EAT approved the introduction of an hypothetical comparator where there was no actual male comparator – the Tribunal constructing a picture of how he would be treated in comparable circumstances.  In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 the House of Lords provided guidance in relation to complaints of victimisation – a simple comparison has [to] be drawn between the treatment afforded to the complainant and that afforded (or that would have been afforded) to other employees who had not done the protected act.”

32.	Taken with paragraph 27 (which we have set out above), he argued that the Tribunal had correctly identified the less favourable treatment, as the panel’s decision not to allow the Respondent to sit the written assessment and by referring Khan and Vento clearly indicated that this was a case where there was no actual comparator but only a hypothetical comparator and that a comparison had to be drawn between the treatment afforded to the complainant and that afforded (or would have been afforded) to other employees who had not done the protected act.

33.	Whilst the Tribunal had not specifically set out the attributes of the comparator, i.e. a police officer with good references who had filled in a similar application form, who had not made a complaint, the Tribunal clearly had that in mind when referring in paragraph 25 to “comparable circumstances”.

34.	He argues there was no complicating issue before this Tribunal as there was in Khan where much turned on whether the hypothetical comparator should be one who had initiated proceedings against the Respondent.  In this case there was no suggestion that it could ever be appropriate for the Appellant to take into account the fact that Mrs Abbott or any other officer had brought a valid complaint of any form; therefore, if it could be established that her prior complaint was taken into account when her application form was assessed and that led to her less favourable treatment, it then followed that she was being treated less favourably than an appropriate hypothetical comparator.

35.	He further argued that although in paragraph 27 (b) the only primary facts relied on by the Tribunal that called for an explanation were the facts that the application had been fully supported by senior police officers and that her previous police force performance was highly regarded, those factors in themselves were sufficient to call for an explanation.  Alternatively, he argued, the Tribunal clearly had in mind the facts that they had already found within the body of their decision, for example:

(i)	the Respondent assisting her husband in making a successful application;
(ii)	Sue Coles’ initial decision that it would be inappropriate for her to sit on the panel
(iii)	the fact that normally candidates would be marked by people from their own division;
(iv)	the alleged comment from Chief Inspector Reed that if she had been marked at a divisional level it would probably have gone through.

36.	We agree with Mr Pirani’s submissions.  Although this Tribunal did not have the benefit of the guidance set out in Barton and subsequent cases, they correctly identified both the less favourable treatment and the hypothetical comparator in comparable circumstances, being a police officer who had not made a complaint, and in our view also set out sufficient facts in the body of their decision and in paragraph 27 (b), which would call for an explanation.

37.	Ms McKie then submitted that the Tribunal erred by failing to consider the causal connection between the earlier complaint and the panel’s decision.  Whilst the Tribunal had found that the Respondent had made a complaint of sex discrimination whilst at Fulham, she argues that the Tribunal’s findings did not make clear that either Sue Coles or Chief Inspector Reed knew that she had made a previous complaint of sex discrimination.  In paragraph 22 (r) the Tribunal find that the Respondent had explained to Sue Coles the previous incident; but there is no finding therein that it was reported to her as one of sexual harassment or discrimination; and again when Detective Chief Inspector Ferguson sent his memo on 5 October the circumstances were described as “complex and sensitive”.  The evidence as regards Chief Inspector Reed was that he was aware of the substance but not the details of the complaints.

38.	Ms McKie complains that the Tribunal’s conclusions in paragraph 27 (b) that the panel “knew that she had done so”, referring to making complaints of sexual harassment, is an impermissible conclusion without there being some more detailed findings as to why they came to that conclusion – see Meek v City of Birmingham District Council [1987] IRLR 250.  She also argues that the motivation of the two panel members was not considered by the Tribunal in accordance with the principles set out in Nagarajan, particularly since Sue Coles had assisted the Respondent with regard to being able to quote examples that were more than 3 years old.

39.	Mr Pirani submits that the Tribunal’s conclusions as to the state of knowledge of the panel was permissible in the light of all the evidence that they had heard and, moreover, it was axiomatic that their decision was that the motivation of the panel was to mark the Respondent down by reason of the fact that she had made the previous complaints.

40.	We agree with Ms McKie’s submissions.  The issue of the knowledge and motivation of the panel was clearly one of the key elements in proving victimisation and the findings made by the Tribunal in their decision do not, in our view, support the conclusion, without further reasons, that both panel members had specific knowledge that the Respondent had made a previous complaint of sexual discrimination.

41.	Ms McKie then argues that the Tribunal took into account irrelevant matters when rejecting the Appellant’s explanation and/or acted on no evidence in rejecting that explanation.  This refers to the 8 areas of evidence set out in paragraph 27 (c) of the decision being the explanations given by the Appellant which did not satisfy the Tribunal.  A number of the explanations could also be considered as the primary facts upon which the Tribunal relied before shifting the burden of proof, but we see no reason why the matters can also not be considered as explanations given by the Appellant when attempting to provide a satisfactory explanation so as to the discharge the burden on them.

42.	The first three reasons given by the Tribunal, namely the fact that the Respondent had apparently successfully completed her husband’s form, the comment made by Chief Inspector Reed and the strong support from her line manager and Chief Inspector, are in our view all highly relevant and proper factors for the Tribunal to have taken into account.  The fourth and eighth reasons, namely that the criticism of her application was nit-picking and that she was unfairly marked down because the instructions were not specific, are again in our view highly relevant areas since the core of the Appellant’s case was that the marking carried out by the panel was fair and in accordance with the instructions that had been given both to the employee and employer.

43.	Apparently a great deal of time within the Tribunal hearing was spent taking the witnesses through the forms and how they were marked and the allegation that they had been marked using a very negative and critical approach.

44.	Since the conclusion of “nit-picking” went to the very heart of the case that was being advanced by both sides, it seems to us that this was a conclusion that required clearer and more detailed reasons, particularly in relation to the finding expressed earlier in the decision that the overall conclusion of the panel was that the evidence produced did not closely reflect the skills area definitions as outlined in the instructions.  We are not satisfied that this finding is Meek compliant.

45.	The remaining reasons in paragraph 27 (c), namely (v), (vi) and (vii), are criticisms of how the Respondent was treated after the application was refused in respect of failing to offer her practical help and guidance and the approach of Mr Denyer and Chief Superintendent Bamber.

46.	Ms McKie argues that all these areas are irrelevant to the Tribunal’s task of considering whether the panel had victimised the Respondent though unfair marking.  Mr Pirani submits that the manner in which Mrs Abbott was treated after the initial decision is all part of the victimisation allegation and that what amounted to arguably unreasonable treatment in the circumstances is relevant as to how a hypothetical comparator would have been treated throughout the application process.  We agree with these submissions.
47.	There is a cross-appeal relating to the Tribunal’s failure in making any, or any sufficient, findings in relation to Mrs Abbott’s claim that she was discriminated against on the grounds of her sex.  This claim was separate and apart from the victimisation claim.  This issue had been set out in paragraph 11 of the Tribunal’s Decision:

“11.	…  The second was whether the refusal by Sue Coles and Chief Inspector Robert Reed to allow the Applicant to sit a written assessment as part of the Detective Constable Development Programme…and the confirmation of that decision on appeal and review amounted to unlawful sex discrimination.”

48.	Apart from the complaints about the procedure and appeals, to which we have already referred on the victimisation claim, Mrs Abbott had also alleged that she was asked questions about (1) her domestic responsibilities, (2) her husband’s jobs and (3) her husband’s views on her application, which were not asked to the other Applicants to the DCDP.  The Tribunal’s finding on aspect, was that:

“27.	(a)	… the process by which her application was assessed was not less favourable treatment of the Applicant as the procedure was applied equally to male officers on secondment 

49.	Mr Pirani argues that the Tribunal had failed to address her complaint that the way in which her form was marked was not only unfair and inconsistent with the instructions to those assessing her, but it was also in stark contrast to the way in which other forms had been assessed; and in particular failed to make findings about the three questions she was asked by the panel.

50.	Ms McKie submits that the cross-appeal is without merit and that, read as a whole, the Tribunal have decided that throughout the application procedure Mrs Abbott was not treated less favourably on the grounds of sex, but because she had made a previous complaint of sexual harassment and discrimination.  Indeed she submits that it would be quite unusual for a Tribunal, having come to the view that the less favourable treatment was because of the previous complaint could also find that the same treatment was on the grounds of sex.

51.	We see nothing wrong or inconsistent in the Tribunal’s approach and we are satisfied that the conclusions in 27 (a) deal adequately with the allegations that were being made.

52.	Accordingly, and for the limited reasons that we have set out, there will have to be a rehearing of this case.  Both Counsel have made submissions as to whether or not, if there is to be a rehearing, it should be sent back to the same Tribunal or to a new Tribunal and we are aware that guidelines have recently been set out by Burton P in the case of Sinclair Roche v Heard (UKEAT/0738/03/MH), where in paragraph 46 he sets out the relevant factors, namely proportionality, passage of time, bias or partiality, totally flawed decision, “second bite” and Tribunal professionalism.

53.	We have no hesitation in deciding that this case should be remitted to the same Tribunal.  Bearing in mind the limited but important issues that we have defined above and that there are no fundamental disputes about the basic facts of the case, the same Tribunal may be able to deal with the two areas that we have highlighted, simply by hearing further submissions and making findings without the necessity of recalling witnesses.  This would be particularly difficult for the Respondent who we understand is still quite unwell as a result of these events.  Whilst we appreciate that it is some considerable time since the Tribunal heard the evidence in the case, they were able to prepare a decision last year and we therefore do not believe that they will have a great deal of difficulty in dealing with these outstanding issues.

54.	The decision in this case is certainly not totally flawed, nor does it reveal any bias or partiality; and we would assume that the same Tribunal is quite capable of a professional approach in dealing with the matter on remission.  Accordingly this appeal is allowed and we would direct a rehearing before the same Tribunal.