Appeal No. UKEAT/0512/04/RN & UKEAT/0513/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
On 12-13 April 2005 and 29-30 June 2005
Judgment delivered on 4 October 2005

Before
HIS HONOUR JUDGE PETER CLARK
MR R A LYONS
MR P A L PARKER CBE

 

MR R CHAUDHARY	APPELLANT

 

 
THE SECRETARY OF STATE FOR HEALTH	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 

 
 
	APPEARANCES

 

For the Appellant	MR JOHN HENDY QC
and
MR GHAZAN MAHMOOD
(Of Counsel)
Instructed by:
Messrs Birchfields
Solicitors
10 Knowsley Street
Cheetham Hill
Manchester
M8 8GF	

For the Respondent	 
 
MISS MONICA CARSS-FRISK QC
and
MR MARK VINALL
(Of Counsel)
Instructed by:
Office of the Solicitor
Department of Health 
Room 540A, New Court
48 Carey Street
London
WC2A 2LS	

SUMMARY

Amendment – Racial Group – Fresh evidence – Perversity – Less favourable treatment by alleged discriminator – indirect discrimination, establishing a prima facie case before the burden of proof moves to the Respondent – Limitation; new decision starting time running.

HIS HONOUR JUDGE PETER CLARK
 
1.	This is a further stage in the diverse Employment Tribunal litigation in which Mr Rajendra Chaudhary has been engaged since 1998.  For an overview of that litigation as at May 2003 we refer to the helpful judgment of Mummery LJ in 5 applications/appeals to the Court of Appeal.  (2003) EWCA Civ 645.
 
2.	We are here concerned with 2 appeals brought by Mr Chaudhary in what have become known as the ‘Manchester 1’ proceedings against:
 
(1)	2 procedural rulings (“the comparator issue” and “Racial Group”) made by a full Employment Tribunal sitting at Manchester under the Chairmanship of Mr M L Creed in January 2004, contained in a ‘decision’ with Extended Reasons, promulgated on 15 April 2004 (the procedural appeal) and
 
(2)	that Employment Tribunal’s substantive decision in those proceedings, dismissing his complaints of both direct and indirect race discrimination and victimisation, promulgated with Extended Reasons on 27 April 2004 (the substantive appeal).
 
There is also a cross-appeal against 2 findings in the substantive decision.
 
Background
3.	Mr Chaudhary commenced the Manchester 1 proceedings by an Originating Application presented to the Manchester Employment Tribunal on 23 December 1998 (Case No 2406136/98).  He there named 9 Respondents initially.  We are now concerned with only one of those, the 8th Respondent, the Secretary of State for Health.
 
4.	It is relevant to note the following matters in connection with his Originating Application:
 
(1)	He described his ethnic origin as Indian.
 
(2)	He is a registered medical practitioner who had trained as a urologist.
 
(3)	He wished to achieve Consultant Status in his field.
 
(4)	In order to do so it was first necessary for his name to be entered on the Specialist Register maintained by the General Medical Council.
 
(5)	In March 1996 the Department of Health issued ‘A Guide to Specialist Registrar Training’ (The Orange Guide).  It set out guidelines for (automatic) transition entry to the grade of Specialist Registrar.  If the criteria for transition were satisfied in a particular case, that applicant would receive a National Training Number (NTN).
 
(6)	Mr Chaudhary was originally refused an NTN by Dr Platt, The Regional Postgraduate Dean for Wessex by letter dated 23 July 1996.  Mr Chaudhary then held a post at Portsmouth Hospital within the Wessex Region.  The reason given was that the post of Registrar which he had held at Manchester General Hospital did not have SAC approval, that is approval by the Specialist Advisory Committee in Urology, a sub-committee of the Surgical Royal Colleges Joint Committee on Higher Surgical Training (JCHST).  An appeal against that decision was dismissed on 14 January 1997.  Mr Chaudhary persisted and by letter dated 15 December 1998 Dr Platt affirmed his view that Mr Chaudhary did not qualify for automatic entry into the Specialist Registrar Grade.  It was that letter which formed the basis of Mr Chaudhary’s complaint of unlawful discrimination/victimisation in these proceedings.
 
The Procedural Appeal
(A)	The Comparator Issue
5.	In further particulars of his Originating Application dated 28 July 2003, settled by solicitors then acting for him, Russell Jones and Walker, Mr Chaudhary identified as comparators for the purposes of his claim of direct racial discrimination 2 Manchester doctors, Mr Brough and Mr Lau, who were of different ethnic origin and who, it was alleged, were permitted to become Specialist Registrars even although they had not held SAC approved Registrar posts.  Thus the less favourable treatment relied on related to Mr Chaudhary’s non transition into the Specialist Registrar Grade when neither he nor his chosen actual comparators had held SAC approved posts.
 
6.	A doctor who was not granted automatic transition could nevertheless enter the Specialist Registrar Grade by open competition.  
 
7.	By a written application dated 7 December 2003 Mr Chaudhary sought permission to amend his Originating Application to add 2 new white comparators, Mr Wedderburn and Mr Hayes.  His case was that Mr Bramble, at the relevant time Chairman of Urology Training in Wessex and the Regional Advisor, initially allocated an NTN to Mr Wedderburn, but then withdrew it.  He nevertheless, through the interview (open competition) process, later appointed Mr Wedderburn to a Specialist Registrar post and offered Mr Hayes a future post as and when one fell vacant.  He was appointed to a vacant post some 6 months later.
 
8.	The Creed Employment Tribunal considered that amendment application as a preliminary issue at the start of the hearing before them in January 2004.  They found that the proposed amendment sought to alter the basis of the original claim.  In essence they drew a distinction between the original claim of direct discrimination, which was directed to the question of automatic transition (Brough and Lau were accepted for transition; Mr Chaudhary was not; none had held SAC approved posts) and the proposed amendment, which was directed to entry to the Specialist Registrar grade through open competition.
 
9.	They refused the application on the grounds:
(1)	that it would introduce a new claim, requiring further evidence, directed to a new ‘discriminator’, Mr Bramble, in addition to Dr Platt.
 
(2)	the amendment was very late; the reason advanced for the late application was considered unsatisfactory.
(3)	the new claim was well out of time, applying the reasoning of a division of this Employment Appeal Tribunal on which I sat (EAT/919/03/RN. 17 December 2003) in a Respondent’s successful appeal against an order made by a Chairman, Miss Woolley, sitting in Manchester, permitting Mr Chaudhary to amend his Originating Application in these proceedings to contend that the 2nd - 6th Respondents were secondary parties, having aided and abetted Dr Platt in the alleged discriminatory act arising out of his decision letter dated 15 December 1998.
 
(4)	the 8th Respondent (Secretary of State) would be considerably prejudiced in terms of fresh investigation and further evidence in the proceedings.
 
10.	In reaching their decision on the application the Creed Employment Tribunal took into account the guidance provided by Mummery P in Selkent v Moore [1996] IRLR 661 and the principle of proportionality and the overriding objective.  They noted that in refusing the application Mr Chaudhary would not be prevented from pursuing his complaint of direct discrimination as originally pleaded, that is on the basis of the comparison with Brough and Lau in relation to automatic transition.
 
11.	In challenging the Creed Employment Tribunal’s refusal to allow the amendment Mr John Hendy QC, leading Mr Mahmood, takes the following points:
 
(1)	that the Employment Tribunal overlooked Mr Chaudhary’s position set out in a letter dated 15 December 2003, that he invited the Employment Tribunal to allow the amendment to add the 2 new comparators, Wedderburn and Hayes, in the existing cause of action and not in a fresh cause of action
 
12.	We reject that submission.  It seems to us that, despite Mr Chaudhary’s protestations to the contrary, it was clear to the Employment Tribunal, as the Respondent submitted, that this was an attempt to introduce a wholly new basis of claim, directed to entry through open competition and not automatic transition.  Hayes was never granted automatic transition; Wedderburn was provisionally but that decision was later revoked.  This was an attempt to open up a wholly new front and at a late stage.
 
(2)	The Employment Tribunal stated that the reason given for the late amendment application was not satisfactory without itself giving reasons as to why it was unsatisfactory.  Mr Chaudhary submitted that he was unaware of the position relating to Wedderburn and Hayes until he received certain answers from the Respondent dated 5 November 2003, in response to a Questionnaire submitted by him and dated 1 September 2003.
 
13.	We accept the Respondent’s submission that Mr Chaudhary knew in 1996 that he had not been successful in the open competition exercise.  Mr Hendy told us that Mr Chaudhary made 35 applications for posts; was short-listed 8 times, but was not appointed.  The Employment Tribunal was entitled to conclude, in these circumstances, that to wait until September 2003 to explore this aspect and potential new cause of action was unsatisfactory.
 
(3)	The initial amendment application was made on the basis that the 2 new comparators be taken together (Employment Tribunal Reasons paragraph 16(e)).  In reply, Mr Gavin Millar QC, then appearing with Mr Mahmood for Mr Chaudhary, submitted that the 2 new comparators be considered separately (Reasons, paragraph 18).  The Employment Tribunal was not prepared to do so (Reasons paragraph 19(j)).
 
14.	Mr Hendy, in reply, also focussed attention on one of the 2 proposed new comparators, Mr Wedderburn.  He pointed out that Mr Wedderburn, like Mr Chaudhary, had not done SAC approved training yet he, like Brough and Lau had been given an NTN.  The difficulty here is that the NTN provisionally allocated to Mr Wedderburn was later withdrawn once Mr Bramble became aware of the need for applicants to have held an SAC approved post.  Thus Mr Wedderburn found himself in the same position as Mr Chaudhary, rather than that of Braugh and Lau.  In short, the treatment of Mr Weddderburn did not differ from that of Mr Chaudhary in relation to automatic transition.
 
(4)	Prejudice to the Respondents.  Mr Hendy submits that Mr Chaudhary had not contributed to the delay in making this amendment application; it was caused by the Respondents’ late disclosure on 25 November 2003.  The proceedings had been in abeyance for almost 6 years, mainly due to the Respondent’s application to strike out on the basis of abuse of process, an application which failed at Employment Tribunal, Employment Appeal Tribunal and finally Court of Appeal level.
 
15.	In our judgment that submission fails to deal with the Employment Tribunal’s finding of prejudice to the Respondent, which related to the fresh investigation needed to deal with the new cause of action directed to open competition entry to the grade, as opposed to automatic transition.  Thus returning to the first of Mr Hendy’s submissions
 
16.	Having considered and rejected each of the points raised by Mr Hendy we return to the Employment Tribunal’s reasons for refusing the amendment application.  In our judgment, for the reasons given, the Employment Tribunal was perfectly entitled to reject the application, made very late in the day, which would have had the effect of opening up a new cause of action under the banner of the direct discrimination claim.  We note that the more relaxed approach to amendments of this kind to be found in Quarcoopone v Sock Shop Holdings Ltd [1995] IRLR 353 (EAT, Buckley J), later doubted by the Employment Appeal Tribunal (Charles J) in Smith v Zeneca (Agrochemicals) Ltd [2000] ICR 800, has now been expressly disapproved by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201.  The approach in Selkent, which we are satisfied was followed by the Creed Employment Tribunal, was endorsed by the Court of Appeal in Ali.
(B)	Racial Group
17.	In his Originating Application dated 23 December 1998 Mr Chaudhary complained that he had been unfairly treated because of his ethnic origin, which he described as Indian.  In the further particulars dated 28 July 2003, in answer to a Request dated 27 June which asked in terms for the racial group to which Mr Chaudhary belonged, that description was repeated.
 
18.	By a letter to the Respondent’s solicitor dated 28October 2003 Mr Chaudhary, then acting in person, put his case on indirect discrimination, and in particular disparate impact in a number of different ways.  As a result, as a further preliminary issue, the Creed Employment Tribunal was asked to rule on whether Mr Chaudhary was seeking to and if so would be permitted to widen his ethnic group.  The Employment Tribunal determined that he should be bound by his ethnic group as originally pleaded in the Originating Application and repeated in the further particulars.
 
19.	We begin with the statute.
 
Section 1 Race Relation Acts 1976 (RRA) provides, so far as is material:
 
“(1)  A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –
…
(b)  he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i)  which is such that the proportion of persons of the same racial group as that other who can comply with it considerably smaller than the proportion of persons not of that racial group who can comply with it, and
(ii)  which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied;”
 
By Section 3(1):
 
““racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.”
 
20.	The definition of racial group, necessary to determine the “pool” for the purposes of the comparative exercise set out in Section 1(1)(b)(i), encompasses a number of options.  It is open to a Claimant to define his racial group by reference to his colour, race, nationality or ethnic or racial origins.  It is plain to us that in his further particulars, in answer to the direct request as to the racial group to which he belonged, the Claimant, Mr Chaudhary, through his solicitors answered Indian ethnic origin.  That was his racial group for comparative purposes.  The Respondent prepared its case on indirect discrimination on that basis.  Mr Hendy submits that it was not until an enquiry by the Respondent dated 20 October as to the relevant pool that Mr Chaudhary was, for the first time, asked to define it; hence his letter of 28 October setting out a “menu of pools”, as Mr Hendy put it.  We cannot accept that submission.  It seems to us that Mr Chaudhary had, until then, clearly pinned his colours to the mast of Indian ethnic origin as the relevant racial group.
 
21.	In these circumstances we are satisfied that the Employment Tribunal reached a permissible case management decision in requiring Mr Chaudhary to proceed on the basis of his stated racial group, and not to permit a different comparative group to be introduced, finally in the skeleton argument prepared on the Claimant’s behalf for the purposes of the substantive hearing.  At no stage was permission sought to amend the Originating Application to plead some different racial group.  It is axiomatic that an Employment Tribunal is required to determine the issues raised in the pleadings and no others, Chapman v Simon [1994] IRLR 124 (CA).
 
For these reasons the procedural appeal fails and is dismissed.
The Employment Tribunal Substantive Decision
22.	From the very full reasons given by the Employment Tribunal for their substantive decision, running to 78 pages, we extract the following material findings and conclusions:
 
(1)	The North Manchester post held by Mr Chaudhary was not SAC approved.  Under Section 2, (Part I) paragraphs 8(b) and (c) of the Orange Guide a relevant career registrar post had to have “educational approval (by the Royal College or Faculty)” which meant approval by the SAC in urology for higher specialist training.
 
(2)	Mr Chaudhary’s application for automatic transition into the Specialist Registrar grade was dealt with by Dr Platt, within the Wessex Deanery, on advice from Mr Bramble, the Regional Advisor in urology.  Based on that advice; that Mr Chaudhary could not claim automatic transition due to his not having held an SAC approved post; Dr Platt rejected Mr Chaudhary’s application.  Dr Platt genuinely supported Mr Chaudhary throughout.  His treatment of Wedderburn and Hayes was consistent with his treatment of Mr Chaudhary.
 
(3)	In the North West Deanery Lau and Brough were mistakenly granted automatic transition despite their not having held SAC approved posts.  Dr Platt was unaware of and had no involvement in their cases.  Mr George, Chairman of urology training in the North West Deanery genuinely (albeit mistakenly) believed that Braugh and Lau were entitled to automatic transition.
 
(4)	In these circumstances Mr Chaudhary’s case in direct discrimination failed because, although Lau and Brough were proper comparators within the meaning of Section 3(4) RRA (a point to which we shall return in the context of the Respondent’s cross-appeal) Dr Platt did not treat Mr Chaudhary less favourably than Brough and Lau because he was not involved in their cases.
 
(5)	The claim of indirect discrimination failed because:
 
	(i)	he had not shown disparate impact and
	(ii)	the requirement for educational approval was justified and
(iii)	(iii)               Mr Chaudhary has suffered no detriment.
 
(6)	The victimisation claim failed because Mr Chaudhary’s protected act, commencing earlier proceedings in the Southampton Employment Tribunal, was not a cause of any action taken by Dr Platt or the Respondent.
 
(7)	The claims were not statute-barred because Dr Platt’s letter of 15 December 1998 was a new decision which started time running (purportedly applying the test in Cast v Croydon College [1998] ICR 500 (CA)).  This finding is also subject to challenge in the cross-appeal.
 
The Substantive Appeal
Fresh Evidence
23.	Two weeks prior to the first day of hearing on 12 April 2005 Mr Chaudhary made application to adduce fresh evidence on appeal, namely:
 
(1)	a solicitor’s note of evidence given by Professor Temple in a claim brought by a Mr Malkan heard on 19 December 1997 in the Birmingham Employment Tribunal 
 
(2)	an affidavit sworn by Mr Malkan on 14 February 2005.
(3)	a witness statement made by Mr Loveland, a witness in the Manchester 1 proceedings, dated 28 November 2003 and served on Mr Chaudhary on 4 December 2003.
 
24.	The 3-fold test for admitting fresh evidence on appeal is that laid down by the Court of Appeal in Ladd v Marshall [1954] 3 AER 745, applied in this jurisdiction by Popplewell P in Wileman v Minilec Engineering Ltd [1988] ICR 318.
 
25.	Despite Mr Hendy’s best endeavours we conclude that this application fell in all respects at the first hurdle, namely whether the evidence could, with reasonable diligence have been adduced at the original hearing before the Creed Employment Tribunal in January and February 2004.  We found that it could.  The note of Professor Temple’s evidence was in the possession of Mr Chaudhary and his advisers before the January/February 2004 hearing; Mr Malkan made a witness statement in these proceedings, but it was decided by Mr Chaudhary and his advisers not to call him, a point noted by the Creed Employment Tribunal at paragraph 28 of their procedural ruling reasons; Mr Loveland’s witness statement had been served prior to the hearing, it was open to Mr Chaudhary’s advisors to rely upon it to establish any inconsistency with his oral evidence.  In these circumstances we declined to admit the fresh evidence, applying the principle of finality of litigation.  Appeals to the Employment Appeal Tribunal are not an opportunity to retry the first instance case.
 
Perversity and Adequacy of Reasons
26.	The original Notice of Appeal dated 7 June 2004 was settled by Mr Chaudhary in person.  It extended to 30 type-written pages.  His skeleton argument dated 1 October 2004 ran to 41 pages.  On 8 April 2005 his solicitors served what was said to be a ‘condensed and revised version of his skeleton argument’ signed by Mr Mahmood.  Having read both versions there is little variation; the ‘condensed’ version now ran to 44 pages.
 
27.	The thrust of the case on appeal relied principally on the perversity ground.  We need not recite the principles set out in Yeboah v Crofton [2002] IRLR 634 (CA).  In short, we are not persuaded that this appeal passes the high hurdle set in that case.  We bear in mind that the question on any further appeal is not whether we are right but whether the Employment Tribunal was wrong in law.  We have concluded that they were not and that the Employment Tribunal’s careful and lengthy reasons pass the ‘Meek’ test, contain unimpeachable findings of fact, leading to permissible conclusions on a proper application of the law.
 
28.	That said we should, in deference to 2 specific arguments addressed to us by Mr Hendy, deal with those submissions.  We emphasise that in advancing those arguments orally Mr Hendy is not to be taken to have abandoned any of the other arguments contained in Mr Mahmood’s revised skeleton argument.
 
Less Favourable Treatment
29.	Mr Hendy submits that the Employment Tribunal was wrong in law in finding that the treatment of Brough and Lau in the North West Deanery was not evidence of less favourable treatment of Mr Chaudhary by the Respondent.
 
30.	The critical issue here is whether the Respondent, the Secretary of State is directly responsible for the disparate treatment of Mr Chaudhary by Dr Platt of the Wessex Deanery when compared with that afforded by Mr George and others in the North West Deanery to Brough and Lau.
 
31.	The short answer, in our judgment, is no.  The Secretary of State accepted vicarious liability for the acts of Dr Platt, the alleged discriminator.  It was, in these circumstances, for Mr Chaudhary to show that Dr Platt treated him less favourably than he did his chosen comparators, Brough and Lau.  He did not; he was not concerned with their applications for automatic transition, nor was he aware of their circumstances in the North West.  Once the direct discrimination failed against Dr Platt it followed that vicarious liability in the Secretary of State was not made out.
 
Burden of Proof
32.	In their self-direction as to the law the Employment Tribunal reminded themselves of the principles set out by the Employment Appeal Tribunal in Barton v Investec Securities Ltd [2003]  ICR 1205, paragraph 25, as to the effect of the reverse burden of proof introduced by Section 55(4A) RRA (applied, by extension, from Section 63A SDA 1975 under consideration in Barton).  Since the Employment Tribunal’s decision in this case the Court of Appeal has revised that Guidance in Igen Ltd v Wong [2005] IRLR 258.  We are grateful to Mr Hendy for his annotated revision of the Barton Guidelines following the Court of Appeal judgment.
 
33	The submission advanced is set out in amended grounds of appeal with our permission.  In approaching the 2 stage enquiry, first whether the Claimant has proved, on the balance of probabilities facts from which the Employment Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an unlawful act of discrimination Igen revised the Barton Guidance by stating that the Employment Tribunal must assume no adequate explanation at this first stage.  Once the Claimant passes the first stage it is then for the Respondent to prove that he did not commit the unlawful act.  Not only must an adequate explanation for the treatment in question be given it must be shown that the treatment was in no sense whatsoever on the grounds of race.
34.	It is clear from the Employment Tribunal’s reasons that they were not satisfied that Mr Chaudhary had surmounted the first stage hurdle.  The material part of their reasoning is at paragraph 80 of their Conclusions Section (12); Page 67 of their Reasons.  We pause to observe that in an otherwise well-organised set of reasons the numbering is repetitive and potentially confusing.  Sequential numbering of paragraphs from start to finish is required.
 
35.	Mr Hendy submits that the Employment Tribunal fell into error in introducing the Respondent’s explanation for their treatment of Mr Chaudhary when compared with Brough and Lau into the first stage of the enquiry.  That is impermissible as a matter of law.
 
36.	We accept that such a submission may be made in relation to paragraph 80(3), which deals with the Respondent’s case, based on the evidence of Mr George, that the treatment afforded to Brough and Lau was as a result of his mistaken belief that they qualified for automatic transition, something which the Employment Tribunal accepted as fact.  That finding depended upon the Respondent’s explanation for Brough and Lau’s treatment by the North West Deanery.  However, we repeat our findings in relation to the first point taken by Mr Hendy.  As the Employment Tribunal say in terms, at paragraph 80(1):
 
“Dr Platt did not treat the [Claimant] less favourably than he treated Mr Lau and Mr Brough because he did not have any involvement in or knowledge of Mr Lau’s and Mr Brough’s case.”
 
37.	That was a permissible finding as a matter of law in our judgement.  The position is analogous with that in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 per Lord Scott, paragraphs 112-113; Lord Rodger, paragraphs 124, 146.  It follows that on that ground alone Mr Chaudhary had failed to discharge the burden on him of showing the necessary less favourable treatment which is an essential requirement at the first stage.
 
38.	We were also taken at length to the evidence of Mr George as to his mistaken belief that Brough and Lau were entitled to automatic transition.  We do not find it necessary to retry that factual question; first, because the Employment Tribunal made a permissible finding of fact with which we shall not interfere and secondly because it is unnecessary in order to determine this appeal to consider the Employment Tribunal’s finding at paragraph 80(3), in the light of our conclusion that the finding at paragraph 80(1) disposed of the first stage enquiry.
 
Cross-appeal
39.	It follows that the cross-appeal is strictly moot.  Having rejected Mr Chaudhary’s contentions in the substantive appeal that appeal fails and the Employment Tribunal’s decision stands.  However, for completeness we shall deal shortly with the 2 points taken by Miss Monica Carss-Frisk QC in the cross-appeal.
 
(1)	Proper Comparators
 
40.	It is submitted that Messrs Brough and Lau were not proper comparators because, first Dr Platt did not deal with their cases and secondly, their circumstances were different to that of Mr Chaudhary.  RRA Section 3(4).
 
41.	As to the first point, as we read the passages in the speeches of Lord Scott and Lord Rodger to which we have earlier referred, their Lordships were referring to the less favourable treatment provision in the Northern Ireland equivalent of Section 1(1)(a) RRA; not the comparator question under Section 3(4).  Secondly, we will not interfere with the Employment Tribunal’s finding of fact (Section 11, paragraph 47, Page 44) that Brough and Lau were proper comparators within Section 3(4) for the reasons there given.
 
(2)	New Decision
42.	Miss Carss-Frisk challenges the Employment Tribunal’s finding (Section 12, paragraphs 11-20) that Dr Platt’s letter of 15 December 1998 was a ‘new decision’, such as to set time running for limitation purposes from that date.
 
43.	First it is submitted that the Employment Tribunal (paragraph 19, Section 12) misstated a passage from the judgment of Auld LJ in Cast v Croydon College.  That is correct.  The Employment Tribunal reported his Lordship as saying that a decision following consideration of a repetition of an earlier request can only amount to an act of discrimination in its own right if the further request contains fresh material.
 
44.	In fact, His Lordship said (Page 511C):
 
“I do not regard it as part of the ratio of the Rovenska decision ([1998] ICR 500 (CA)] that a decision following consideration of a repetition of an earlier request can only amount to an act of discrimination in its own right if the further request contains fresh material.”
 
45.	Thus the Employment Tribunal’s misstatement put a higher burden on the Claimant than did Auld LJ, as Mr Hendy correctly submits.  The error favoured the Respondent, not the Claimant.
 
46.	Nevertheless, applying that higher test, the Employment Tribunal went on to find as fact (Paragraph 15) that the material request from Mr Chaudhary leading to the 15 December letter did contain new material.  Again, we shall not interfere with those factual findings.  
 
47.	Accordingly we reject this further ground of cross-appeal

Conclusion
 
48.	We heard argument in these appeals over 4 days.  We were presented with a considerable quantity of documentary material and nearly 40 authorities.
 
49.	Having taken time to digest all that has been put before us we have reached this simple conclusion.  Neither party has succeeded in demonstrating to us any material error of law such as to vitiate either of the Employment Tribunal decisions in whole or in part.  Consequently both appeals and the cross-appeal fail and are dismissed.