Appeal No.UKEAT/0384/07/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2007
Judgment handed down on 12 March 2008

Before
THE HONOURABLE MR JUSTICE UNDERHILL
MR P GAMMON MBE
MR D WELCH

DR C D’SILVA	APPELLANT

NATFHE (NOW KNOWN AS UNIVERSITY AND COLLEGE UNION)
AND OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DALE MARTIN
(of Counsel)
Instructed by:
Messrs Hudgell & Partners Solicitors
35/36 Market Street
Woolwich
London
SE18 6QP	
For the Respondents	MR BRUCE GARDINER
(of Counsel)
Instructed by:
Messrs Williams Holden Cooklin Gibbons LLP
6th Floor
40 Lime Street 
London
EC3M 7AW	

SUMMARY
Race Discrimination – Inferring discrimination
The Appellant, a University lecturer, alleged that decisions taken by his union about assisting him with a discrimination claim against his University were themselves taken on racial grounds or constituted victimisation – The Tribunal found that there was no sufficient basis to shift the burden of proof – Held that there had been no error of law in that conclusion - In particular: (1) the Tribunal had not failed to deal with important factual allegations relied on by the Appellant; (2) its findings on the reasons for the acts complained of meant that it was unnecessary to consider allegations that the hypothetical comparator had been wrongly constructed (Shamoon relied on); (3) the Tribunal had not “failed to look at the bigger picture”; (4) the Tribunal had not been obliged to treat alleged failings in disclosure and the response to the Appellant’s statutory questionnaire as giving rise to an inference of discrimination – Observations on the correct approach to the relevance of such failures

THE HONOURABLE MR JUSTICE UNDERHILL

1.	This is an appeal against the decision of an Employment Tribunal sitting at London (Central), promulgated on 6 August 2006, dismissing the Appellant’s claims of racial discrimination against all the Respondents.  The Appellant is a University lecturer.  He is a member of the First Respondent (“the Union”), formerly known as the National Association of Teachers in Further and Higher Education (“NATFHE”) but now renamed the University and College Union.  The discrimination of which the Appellant complained was the handling by the Union and by various of its officers and employees (who are the Second to Sixth Respondents), on a number of different occasions from early 2005, of linked applications for legal assistance in the conduct by him of proceedings of racial discrimination against Manchester Metropolitan University (“the University”). 

2.	The Appellant was represented before us by Mr Dale Martin and the Respondents by Mr Bruce Gardiner.  We are grateful to both of them for their succinct and forceful submissions.  Mr Martin did not appear before the Employment Tribunal and had only limited instructions about how matters had proceeded there: he had not seen the submissions of the representative then acting for the Appellant, Mr Deman, or the full documentation which was before the Tribunal.  We say that not by way of criticism but because it is material to the way in which he developed his submissions on one or two aspects of the appeal.  

THE FACTS
3.	The Appellant has since 1993 been employed as a lecturer or senior lecturer in the Department of Chemistry at Manchester Metropolitan University.  He is of Indian origin.  He has been a member of the Union since 1994.  

4.	As part of the benefits of membership the Union offers its members legal advice and representation in respect of employment disputes in accordance with “legal scheme regulations”.  These provided at the material time that the Union had an absolute discretion to determine to what extent and in what form legal services were to be provided: members’ wishes were to be taken into account but the Union was not bound to comply with such wishes.  The scheme provided for the services to be terminated at any time on a review of the facts and/or the merits of a case and/or in the case of a failure to co-operate by the member.   The cover did not extend to liability for the costs of the other party, but there was provision for obtaining insurance cover in that respect provided that the insurers took the view that the case had sufficient merit.  The scheme required the member to act in accordance with the advice given by the legal team, which would comprise the Union’s in-house legal team (headed at the material time by Michael Scott, the Second Respondent) and by any external solicitors or barristers who might be instructed.  The normal practice was for a member who applied for legal assistance to be given “initial advice” within a short time, with a further request having to be made for further legal assistance if required.  The Tribunal summarised the Union’s approach at para 5.7 of the Reasons as follows:

“The decision to refuse or withdraw legal assistance is in the discretion of the first Respondent and made by the legal team, who might consult with other managers before reaching a decision.  A member does not have the right to legal assistance and whether or not it is given depends on the merits of his or her claim as assessed by the First Respondent’s legal team.  Amongst the factors which might be taken into account are whether or not the details of the claim impact upon the membership of the union generally, such as in a test case where a principle of general application is involved.  The funding available in the budget for legal assistance is also a factor.” 

5.	In 2002 the Appellant brought Employment Tribunal proceedings against the University alleging racial discrimination: these were compromised in November 2003.  Although he was initially advised by the local Race Equality Council, at an early stage he was offered assistance by the Union; but after some delays Mr Scott gave pessimistic advice as to the merits of the claim and the scale of the assistance being offered was reduced.  The Appellant instructed his own solicitors and Counsel, who conducted the case for him until it was settled.  At one point he applied to the Union for a contribution towards the costs which he had incurred, but that was refused.  During the same period he also received some advice from solicitors instructed through the Union as to a possible stress-related personal injury claim against the University; but the advice in relation to that claim also was unfavourable and he had not proceeded.  His experience of seeking assistance in relation to these matters left him dissatisfied with the Union, and he complained to the Race Equality Council although in the end matters were not taken any further.  

6.	Within a very short time of the settlement of his claim against the University the Appellant believed that he had been the victim of further discrimination by it.  We do not have full details of his claim, but it seems to have been wholly or mainly a claim of victimisation, and part of it focused on the terms of a reference or references written for him by a Professor Leech. 

7.	On 30 November 2003 the Appellant made a request for further legal assistance from the Union in connection with his proposed new claim.  Prolonged correspondence ensued between him and Mr Scott about whether, and if so on what terms, the Union would provide assistance.  There was initially some delay caused by the Appellant’s failure to complete a fresh application form, but the principal problem related to the identity of Counsel whom the Union would instruct to obtain advice on the merits of the claim and, if the advice were favourable, to represent the Appellant.  The Appellant was unhappy with the barristers whom Mr Scott originally intended to instruct.  He had various objections, some of which at least seem to us to have been plainly ill- founded; but his primary objective seems to have been to have Counsel instructed from Littleton Chambers.  Mr Scott was willing in principle to instruct Counsel from those Chambers, but enquiries revealed that there was no one available there who could undertake the necessary work at an acceptable price.  We need not set out the details of the exchanges between the Appellant and Mr Scott, although it is right that we should say that it seems to us from the correspondence which we have seen that Mr Scott showed commendable care and patience in his handling of the Appellant, whose correspondence was not always reasonable or polite.  (We note, without needing to pass any comment on its relevance, that Mr Scott is himself of mixed, what is sometimes called “Anglo-Indian”, race.)  In the meantime the Appellant commenced his proceedings against the University. 
 
8.	By the autumn of 2004 an impasse seems to have been reached on the question of legal assistance from the Union.  But in November the Appellant and Mr Scott agreed to try to make a fresh start.  After some further enquiries about the availability of acceptable Counsel, in January 2005 the Appellant agreed to the instruction of Mr Nicholas Toms of Doughty Street Chambers.  

9.	On 14 February 2005 a conference took place at Mr Toms’s Chambers.  It was attended by the Appellant and Mr Scott.  At his request, the Appellant was also accompanied by Mr Andrew Graham, who has an association of some kind with a body known as the “Council for Ethnic Minority” (“CEM”): CEM had been active in discrimination cases brought by other claimants in the higher education sector, including Mr Deman to whom we have referred above.  The conference lasted over four hours.  Mr Toms’s overall advice was pessimistic, although he regarded some parts of the claim as less weak than others.  In the course of the conference Mr Scott raised with Mr Toms the effect of the well-known decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065.  There appears to have been some short discussion between Mr Scott and the Appellant following the conference but no decision was made about the question of assistance. 
10.	On 17 February 2005 the Appellant sent Mr Scott an e-mail.  The text of the e-mail itself was very brief and referred only to the possibility of mediation; but he attached a much longer letter dated 16 February.  The letter referred to “consultations” which Mr D’Silva had had with his “colleagues”; we take that from indications elsewhere in the correspondence to be a reference to CEM.  He made a general complaint that despite having paid subscriptions to the Union for ten years he had not “received value for money as have other ethnic minorities”.  He referred to previous failures by the Union to support him: this is no doubt a reference to his earlier proceedings against the University.  He then went on to complain that Mr Scott had sought to influence the advice given by Mr Toms by referring him to Khan.  He said that this intervention had been instrumental in leading Mr Toms to the conclusion that his prospects of success were less than 50%.  He commented, offensively, that “one has to wonder what is the role of Counsel except to support Mr Scott’s decision”.  After referring again briefly to the merits of his case he then said this (we have silently corrected some errors of spelling and punctuation):

“In view of Counsel, Nick Toms’, opinion that I have less than a 50% chance of success based on the Khan case I would like a second opinion from a Senior Counsel from Littleton Chambers, before I approach my own barrister for his own opinion and report you to the Bar for leading Nick Toms in relation to the Khan case.  One has to wonder what is the role of Counsel when you have M Scott.  If you are not willing to do this please ask Nick Toms to provide me with his written comments on the merits of my case so that I can instruct an alternative Counsel with more experience who can provide me with his impartial judgement.”

It will be seen that that letter not only questions the correctness of the advice given by Mr Toms but makes an explicit allegation of impropriety against Mr Scott and expresses an intention to report him “to the Bar”.  (Mr Scott is in fact a solicitor, so that any complaint would have to have been made to the Law Society; but this is not a point of importance.) 

11.	Mr Scott replied to the Appellant on 18 February 2005 declining to obtain a second opinion from “senior counsel” from Littleton Chambers and questioning the utility of obtaining a written advice from Mr Toms if the Appellant was intending, as he said, to instruct other Counsel in any event.  He picked up the reference in the covering e-mail to the possibility of mediation and said that the Union would be willing to meet half the costs of a mediator.  His letter was, again, notably courteous and professional notwithstanding the offensive nature of the allegations made in the Appellant’s letter to him.

12.	The Appellant responded on 20 February 2005.  He referred again to “consultations to my own colleagues” and said that they had advised him that Khan was irrelevant to his own case.  He continued:

“Therefore the Khan case does not apply to my case and I disagree with the understanding of Nick Toms, who I claimed did not have the necessary racial discrimination experience, is supported here [sic].  I consider Nick Toms and yourself presented flawed arguments in an attempt to undermine the merits of my case.” 

There is again, therefore, an explicit allegation of bad faith against Mr Scott (and indeed, though this may not have been what the Appellant meant to say, against Mr Toms).  He complained that he had not been provided with a copy of a “list of issues” which Mr Toms had apparently prepared prior to the conference and sent to Mr Scott.  He then made a point about the University’s deficient supply of information and disclosure; in the course of doing so he referred again to Mr Scott’s “attempt ... to undermine my case” and accused him of having “orchestrated the situation and further in the meeting tried to intimidate me with arguments of costs against me to give [the claim] up”.  He continued:

“I can now understand why you did not want me to have a barrister of my own choice from Littleton Chambers.  This was to cause me detriment, because of my racial origin and for carrying out protected acts by complaining against NATFHE for racial discrimination and victimisation and for providing evidence in a complaint of racial discrimination by a fellow NATFHE member.  As I pointed out to you in my email you have led the Counsel to this conclusion to wash your hands of my case.  We agreed in our meeting on the 12th November that I would proceed with NATFHE without recriminations in relation to your previous conduct however you continue to cause me detriment.”

(The reference to “providing evidence in a complaint of racial discrimination by a fellow NATFHE member” is a reference to proceedings against NATFHE brought by Mr Deman.)

“I would like to know if I have a right to appeal against M Scott’s and N Toms’ decision as to the merits of my case. Now that you have refused to instruct Counsel, Mr Toms, to provide written comments to preserve your own position and for transparency of legal advice obtained by NATFHE I wish to make a complaint of racial discrimination and victimisation against NATFHE and I am contacting the CRE for assistance in this respect.  In regard to my comment that I wish to instruct alternative counsel I have the right to seek a second opinion from more senior counsel even if M Scott does not want this and send a bill to NATFHE.  In addition I will seek redress via the Law Society and the Bar Council if necessary.” 

The letter was copied to Mr Toms, to two other officers of the Union and to Mr Graham (in his capacity as representative of “Tribunal for Racial Bias”, which we understand to be an organisation of some kind concerned with allegations that Employment Tribunals are biased against complainants of racial discrimination).

13.	Mr Scott responded by letter dated 1 March 2005.  He dealt briefly with the question of the relevance of Khan and with why the Appellant had not received a copy of the list of issues prior to the conference.  He then continued:

“Thirdly you asked if you have the right of appeal against “M Scott’s and N Toms’ decision as to the merits of my case”.  I have to point out that neither Nick Toms or I have made any such decision.  We have provided you with our opinion of the likely prospect of success in your tribunal claims.  A decision on them is made by the tribunal who hears them.  I have made it clear to you that in my view unless the legal opinion is that there is a reasonable prospect of success in at least some parts of your claim the union would not agree to provide you with  representation at the full hearing.  However, you were invited to say what further assistance you would want from the union and I would put that to the union.  As I read your letter of 20 February you are asking the union if it will pay for the cost of a second opinion which you would obtain personally through instructing your own solicitor/barrister.
To enable the union to consider that request I will ask Nick Toms for a note of the advice that he gave at the conference. I will send a copy to you.  You can send me any comments you want to make on it then I will put both the note and the comments to the union. Nick Toms tells me he thinks he will be able to provide the note by the end of next week.”

14.	Mr Toms supplied a written advice on liability which Mr Scott received on 18 March 2005.  On that date Mr Scott wrote to the Appellant as follows:

“I attach a copy of Mr Toms’ written advice on liability which I received today.

You will see that, in essence, Mr Toms considers that no part of your claim has a reasonable prospect of success as currently put. Indeed, he goes so far as to express concerns that you may be at risk of a costs award if you run all the currently pleaded allegations.

However, Mr Toms is of the view that if it were to withdraw what he describes as the “other issues” you may have some prospects of success in relation to the references provided by Professor Leech.

There are difficulties with this approach.  Firstly you are very near to a full 4 week hearing. You would need to make an application to the Employment Tribunal to amend your claims and withdraw those parts that you are no longer wishing to pursue.

The Respondents may object, and they may also seek their costs in relation to those parts of the cases which are to be with drawn. There is no guarantee that the Tribunal would agree to give you leave. If it does however, in addition to the risk of costs thrown away, there is also the question of the need to revise urgently your witness statement and review the trial bundle. The Respondents would also no doubt wish to review and revise their witness statements. Those costs incurred may also become payable by you.

NATFHE has considered what further legal service it is prepared to offer you. It has decided that if you agree to follow Mr Toms’ advice and pursue a limited case by withdrawing the other issues and focusing on the references provided on Professor Leech, it is prepared to offer representation through my office with Mr Toms as Counsel

If you wish to accept this offer, I also need to point out that at the present time I have not approached our legal costs insurers and I cannot therefore tell you whether or not they would be prepared to provide insurance cover for your claim because of the caveat, which Mr Toms’ advice includes about the risk of costs. If we cannot obtain legal costs insurance cover for you, you will remain personally liable for all of the University’s costs in the event of a costs order being made against you.

This is clearly a difficult decision for you to make. I am aware that you have always wanted to put all the allegations before the Tribunal, and even at this stage no doubt you would want to say that even if you were to accept Mr Toms’ advice, the Tribunal should still hear all of the other issues as background. The references of course are dated in February 2003 and December 2003 and it therefore seems to me that background issues after December 2003 are unlikely to be necessary. In addition the protected act, being the previous set of proceedings, which were withdrawn in October 2003, are not in dispute. It seems to me unlikely that the Tribunal would need or indeed want to be taken into detail about the allegations, which gave rise to those proceedings.  However clearly some of the background has to be given in order to establish why Professor Leech may have victimised you in the provision of the references.

I appreciate that you will want to take time to consider this advice and your options. However bearing in mind the proximity of a full hearing I look forward to hearing from you as soon as possible and if you can get back to me before Easter that would certainly be most helpful.”

15.	The Appellant replied by e-mail dated 19 March 2005.  He said this:

“Thank you for your letter of the 18th March 2005.  In regard to your offer and suggestions I am willing to withdraw the weaker claims. However in view of the lack of trust and confidence between us and your denial of assistance in my directions hearing you should consider whether it would be appropriate for N Toms to represent me. I think you should consider offering me a solicitor & barrister of my own choice or at least a barrister of my choice.”

Read literally and without reference to the context, that was an acceptance of Mr Scott’s offer. Although the Appellant proposes the instruction of a different legal team, he does not make that a condition of his acceptance and asks only that Mr Scott should “consider” his proposal.  On the other hand, he repeats his assertion that there is a “lack of trust and confidence between us”, which of course refers to the explicit allegations of bad faith made in the previous letters.  In those circumstances, there is at least a question-mark over whether the Appellant would have in fact been prepared to accept assistance from the Union on the only basis on which it was offered, namely that assistance would be provided by the in-house team led by Mr Scott and instructing Mr Toms as Counsel.

16.	 Mr Scott sent a holding reply by e-mail on 21 March 2005.  The following day, having discussed the matter with colleagues within the Union, he replied as follows:

“Further to my email of 21 March, I am now able to inform you of the union’s decision. The union made you an offer of assistance as set out in my letter of 18 March 2005. It is, however, clear from your email of 19 March 2005 that you do not accept that offer.
The union will not offer you a different team to assist you. 
In these circumstances, there is nothing further that I am authorised to do for you. I shall now take steps to close my file.  If you would like the return of any copy documents or papers which you sent to us, please let me know with four weeks, otherwise you will deemed to have agreed to their confidential disposal by the union.”

It will be seen that that letter treated the Appellant’s e-mail of 19 March 2005 as a refusal of assistance, apparently on the basis that the Appellant required to be assisted by a different legal team.  As we have already observed, that is not what the Appellant’s e-mail explicitly stated, but there were grounds on which it might have been understood to be its real message; and in any event the Appellant had said in terms that there was a “lack of trust and confidence” between him and the Union’s legal team.  Mr Scott’s thinking in this regard appears from an e-mail of 23 March 2005 copying the letter to various colleagues.  This reads as follows:

“Please find attached letter to Dr D’Silva. This was prepared after discussion with Roger, Andy and myself.  We were all of the view that Dr D’Silva could not be represented by a legal team of his own choice.  Whilst Dr D’Silva expresses an acceptance of the legal advice he has received, he still maintains somewhat inexplicably a lack of trust and confidence in those who gave it, myself and Nick Toms.  In these circumstances I also have grave doubts about whether he would in fact follow our advice and indeed whether his expressed lack of trust and confidence together with his earlier threats of complaints to the CRE and the Law Society/Bar Council would have raised issues of conflict which would have rendered continued assistance by myself and Nick Toms impossible.  But in the event the question of conflict does not arise since he has rejected the offer although not the advice.”

17.	The Appellant replied to Mr Scott’s letter of 22 March 2005.  The letter begins:

“On Monday 21st March 2005 you informed me you were passing the copy of my letter dated 18th March 2005 to the Union and by mail I received a letter dated 22nd March 2005 instructing me of the Union’s decision in which you claim that as I did not accept your offer, as a result the Union would not offer me a different legal team despite the conflict of interest.  The conflict of interest being the unprofessional conduct shown by yourself and N Toms which resulted in me not receiving Union assistance in relation to my Directions Hearing.”

This characterisation of the Union’s view is interesting, as it appears to recognise that there was indeed a conflict of interest between himself and the Union which, in the Appellant’s view, necessitated the instruction of a different legal team.  He went on, however, to point out that he had never said that he would not accept the offer of representation contained in the Union’s letter of 18 March 2005 and had indeed accepted it “in principle”.  After making a further point about the terms of the letter of 18 March 2005, the Appellant asked to be told which other employees or officers of the Union were involved in the decision not to offer assistance and said that he wished to appeal and asked for the entire correspondence to be put before the NATFHE Executive Council.

18.	Mr Scott replied on 30 March 2005 identifying the other members of the Union involved in the decision as being the Third and Fourth Respondents. He pointed out that the Regulations governing the “legal scheme” did not provide for any appeal.  On 31 March 2005 the Appellant wrote to the General Secretary of NATFHE, Mr Paul Mackney (the Fifth Respondent), asking for a review of the decision not to offer further assistance.  Although the Regulations governing the legal scheme did not provide for any such review, Mr Scott advised that Peter Jones (the Sixth Respondent), the member of the NEC with responsibility for overseeing the operation of the scheme, be asked to carry out an informal review.  Mr Jones did so.  Having discussed matters with the Second to Fourth Respondents he concluded that their decision was correct and that no further legal assistance should be provided.  The Appellant was notified of this decision by letter from Mr Mackney dated 8 April 2005.  

19.	There then followed a rather remarkable sequence of events.  The hearing of the Appellant’s claim against the University was listed to commence in the Manchester Employment Tribunal on 18 April 2005.  On the first day of the hearing an application was made on behalf of the Appellant for an adjournment.  That application was refused.  The Appellant thereupon made it clear that he intended to take no part in the hearing.  It appears, however, that the University was keen to obtain a decision on the substantive merits and the case accordingly proceeded, in the Appellant’s absence, for no fewer than fourteen days of evidence and submissions, followed by further four days deliberation in Chambers.  The Appellant did not at once appeal against the refusal of an adjournment; but he did so on 25 May 2005, after the conclusion of the hearing before the Tribunal but before it had promulgated its decision.  The appeal was expedited and came on for hearing before Judge Serota QC on 3 June 2005.  He allowed the appeal, holding that the Tribunal ought to have allowed the application for an adjournment.  But he regarded it as highly irresponsible that the Appellant had delayed for some six weeks before lodging his appeal, with the result that the entire costs of the hearing had been wasted, and he ordered that the Appellant should pay those wasted costs.  (It subsequently transpired that Judge Serota’s order had in fact been made without jurisdiction, since he had sat alone whereas the decision under appeal had been made by a full Tribunal; but it took some time before that was appreciated.)  By an unfortunate coincidence, on the very same day that Judge Serota made his order the decision of the Tribunal was promulgated.  Notwithstanding his non-participation, the Appellant was held to have succeeded in some parts of his claim.    

20.	On 13 June 2005 the Appellant applied to the Union for further legal assistance in relation to the costs order made by Judge Serota.  The view was taken, plainly appropriately, that that the application could not be considered by Mr Scott (who was by this date a named respondent in proceedings brought by the Appellant) and it was passed to a member of the NEC called Mr John Bryan for consideration.  Mr Bryan wrote a letter to the Appellant dated 24 August 2005 refusing assistance.  Unfortunately, that letter was never received by the Appellant.  He wrote two chasers to Mr Bryan, who failed to reply: the Tribunal (to anticipate) found that this was because Mr Bryan was heavily involved in an industrial dispute at the time and suffering from stress and simply neglected his correspondence. 

THE TRIBUNAL PROCEEDINGS
21.	The Appellant brought two sets of proceedings in the Employment Tribunal arising out of the events summarised above.  In the first claim, presented on 12 May 2005, the Appellant complained of various aspects of his treatment by the Union.  The acts complained of which are relevant to this appeal are (1) the decision communicated by Mr Scott’s letter of 22 March (see para 16 above) and (2) the outcome of the review set out in Mr. Mackney’s letter of 8 April (see para 18).  By the second claim, presented on 22 October 2005, he complained of the (as it seemed to him) failure of Mr Bryan to deal with his further request for assistance made on 13 June.  The ET1 in the first claim was amended on 8 August 2005.

22.	In all three respects complained of the Union was said to have discriminated against the Appellant either directly within the meaning of sec. 1 (1) (a) of the Race Relations Act 1976 or by way of victimisation within the meaning of sec. 2 of the Act.  So far as the allegation of direct discrimination is concerned, there is no particularisation save for an assertion that “had the Applicant been white he would not have been so treated”.  However, the Applicant subsequently asserted that he had been less well treated than two other white Union members whose claims had been supported – a Ms Birch and a Mr Capel: this was never in fact pleaded, but the case was permitted to proceed on that basis.  As for the allegation of victimisation, the Appellant pleaded in the earlier case that the decisions of which he complained were motivated by the Union’s unhappiness about his being willing to give evidence for Mr. Deman in the proceedings referred to at para. 12 above and/or his own history of complaining about discrimination in the Union’s provision of legal services (as summarised at paras. 5-12 above).  The same allegations were pleaded in the second proceedings.  

23.  	The two claims were consolidated and came before the Employment Tribunal over several days between the 26 June and 6 July 2006.  All the Appellant’s complaints were dismissed.  The Tribunal set out the facts in some detail: we have summarised the material findings above.  Section 7 of the Reasons is headed “the Tribunal’s Assessment”.  We will need to refer to some other parts of it below, but the paragraphs which directly bear on the three claims of discrimination identified above are as follows:

“7.15	Having been given Mr Tom's written advice, which was generally unfavourable but offered limited prospect of success in some of the claims, the Claimant's response on 19 March 2005 to the limited offer of support by stating that he had lost confidence in the 2nd Respondent and Mr Toms led to the withdrawal of legal assistance.  It was not an unreasonable conclusion by the 1st Respondents that the Claimant had effectively rejected the offer of support which had been made to him on the basis of the advice of Mr Toms and the limited representation which would be afforded based on that advice.
7.16	In the light of the response by the Claimant, it was not an unreasonable exercise of discretion to terminate legal assistance to the Claimant.  He had expressed no trust and confidence in the advice and representation he had been given and made a request for alternative advisers to be appointed.  The 1st Respondents were entitled to have regard to the limited funding available as a factor in their decision to withdraw assistance.  It has not been shown that in the same or similar circumstances a white applicant making a similar request was or would have been allowed a new legal team.  In particular, no relevant more favourable treatment was shown in the Birch or Capel cases.  Primary facts have not been established from which race discrimination or victimisation can be inferred.
7.17	The Claimant's appeal against the withdrawal of assistance was referred to the 6th Respondent as the NEC member responsible for legal services.  He had not taken any part in the decision making process which led to withdrawal.  He was the appropriate person to deal with the review.  There was no right to a review under the legal assistance scheme, however it was felt appropriate to allow this for the Claimant.  The decision to withdraw assistance was upheld by the 6th Respondent, applying his judgment to the information which he had before him and his knowledge of the regulations of the legal assistance scheme.  The decision does not establish primary facts from which race discrimination or victimisation could be inferred.
7.18	As regards to the subsequent claim for legal assistance made by the Claimant in June 2005, in connection with a costs claim against him by his employers in the appellate proceedings, this was properly considered by a member of the National Executive Committee.  In the exercise of his discretion, the claim for legal assistance was refused.  We are satisfied that the NEC member wrote to the Claimant on 24 August 2005 informing him of the rejection of his application.  However, it seems from the Claimant's subsequent correspondence seeking a decision on his application that this letter was not received by the Claimant.  It is unfortunate that the Claimant's subsequent correspondence to the NEC member went unanswered.  However, this does not, in itself, establish facts from which race discrimination or victimisation could be inferred.  In any event, we would accept the explanation of the 1st Respondents for this unanswered correspondence, which lay in the personal circumstances of the NEC member, who was deeply involved in an industrial dispute at his own college in Newcastle at the time, in which his own lecturing position was in jeopardy and, as a consequence of which, he was suffering from stress.
…
7.22	We add, that had we found in relation to any of his allegations that the Claimant had established primary facts from which race discrimination or victimization could be inferred, so as to transfer the burden of proof to the Respondents, we would have been satisfied on the evidence we have heard that such burden was discharged by the explanations as we have been given, as mentioned above, for the acts of which the Claimant complains.  We find that the explanations have been reasonable, credible and not discriminatory on grounds of race or the Claimant having done protected acts.”

THIS APPEAL
24.	The Appellant appealed to this Tribunal against the dismissal of all aspects of his claim.  At a rule 3 (10) hearing on 18 July 2007 Silber J allowed the appeal to proceed to a full hearing on the basis of Amended Grounds of Appeal relating only to the three acts complained of which we have identified above.  The Union applied to have aspects of the “leave” set aside; but Silber J directed that the issues raised should be dealt with at the hearing of the substantive appeal.  In the event we do not need to consider this aspect separately from our conclusions on the appeal as a whole.

25.	The Amended Grounds of Appeal are under nine heads.  But Mr. Martin made two general points which were not advanced as grounds in their own right but which he said arose to some extent in connection with several of the particular grounds. 

26.	First, he submitted that the Tribunal’s Reasons did not adequately state the reasons for its various decisions – in short, that they were not “Meek-compliant” (see Meek v. City of Birmingham [1987] IRLR 250).  We will consider this aspect, so far as necessary, in connection with each individual complaint.  We would only observe at this stage that it is necessary to consider not only the reasons stated in the comparatively short paragraphs which we have set out but the reasoning apparent from the earlier passages of section 7 of the Reasons and from the Tribunal’s findings of fact.
27.	Secondly, he pointed out that the Tribunal’s analysis in paras. 7.15-18 of the Reasons focused primarily on whether the Union’s conduct had been “reasonable”, which was not the essential question.  However, it must be recalled that this was not a case where there was any direct evidence of racial discrimination, whether in the form of language betraying discriminatory attitudes or other specific, for example statistical, evidence.  The Tribunal was, in effect, being asked to infer discriminatory motivation essentially from the fact that the Appellant, being (a) a member of an ethnic minority and (b) someone who had made a previous complaint of discrimination, had been unreasonably treated.  That being so, the question of the reasonableness of the Union’s conduct was central: if the Appellant’s treatment was not unreasonable, the basis for drawing the inference sought would not exist.  It is clear to us that this was the Tribunal’s approach, and we can see nothing wrong with it.  It is to be observed that none of the pleaded grounds (save, to some extent, (vi) – see para. 34 below) directly challenge the Tribunal’s conclusion that it was reasonable for the Union to withdraw further legal assistance from the Appellant.  In our view it is clear from the facts which we have summarised above that that decision was in truth unassailable, given (i) the advice which it had received about the merits and (ii) the Appellant’s expressed lack of trust in the Union’s legal team. 

28.	We turn to consider the nine pleaded grounds of appeal.

29.	Ground (i) is as follows:

“Failing to consider and/or determine either properly or at all the Appellant’s case that there was a preconceived hostility to him (as to which the Tribunal had heard evidence running back to 2002 including numerous allegations of race discrimination made by the Appellant against the Respondents) and that there was racial bias evinced by such hostility.”

The ground is concerned with the history of previous “preconceived hostility” as evidence of “racial bias”, i.e. as evidence that the acts complained of were done on racial grounds within the meaning of sec. 1 (1) (a).  The point being made is essentially that the Tribunal fell into the same error as the Tribunal in Anya v. University of Oxford [2001] ICR 847, namely of failing to make findings on important allegations of primary fact relied on by a Claimant as evidence of discriminatory behaviour (albeit not as acts complained of in their own right).  Mr Gardiner submitted that the Appellant had not before the Tribunal made any allegation of “preconceived hostility”.  Mr Martin was not able to assist on this, and it is true that the very full account of Mr Deman’s oral submissions contained in section 6 of the Reasons does not use that phrase.  However, it does seem that Mr. Deman relied on the history since 2002 as evidence supporting the discrimination complained of in 2005.  But even if he did, we do not believe that the criticism made in this ground is sustainable.  In the earlier part of section 7 the Tribunal recounted the earlier history from 2002 onwards, and made specific findings that the behaviour on which the Appellant relied was reasonable and could support no inference of discrimination.  We need not set out the paragraphs in question, but we note in particular paras. 7.3, 7.4, and 7.6-7.10.  

30.	Ground (ii) is as follows:

“Failing to properly construct the hypothetical comparator and thereafter make a comparison between treatment of the complainant and the treatment of an applicant for legal funding of a different racial background from the Appellant but with various other common features.”

It might reasonably have been hoped that the Frankensteinian figure of the badly-constructed hypothetical comparator would have been clumping his way rather less often into discrimination appeals since the observations of Lord Nicholls in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (see in particular para. 11 at p. 342B) and the decision of this Tribunal, chaired by Elias J., in Law Society v. Bahl [2003] IRLR 640, at paras. 103-115 (pp. 652-4).  We regard it as clear, taking the Reasons as a whole, that the Tribunal made an express finding that the only reason why the Union acted in the way complained of was that (as regards the initial decision and the first review decision) the Appellant had expressed a lack of trust and confidence in his legal team and (as regards the subsequent review) that Mr. Bryan had genuinely overlooked the Appellant’s further correspondence.  Those findings necessarily exclude the possibility that the acts complained of were done, even in part, on racial grounds (or on grounds which would constitute victimisation).   If that finding is unassailable it necessarily answers also the question whether he would have been treated more favourably if he had been white or if he had not previously supported Mr. Deman or complained of racial discrimination.  It is accordingly unnecessary to consider in detail the passages in which the Tribunal referred to the nature of the hypothetical comparator.  We would however say that we can see no sign that it failed to appreciate any essential feature of the necessary comparison.

31.	Ground (iii) is as follows:

“Failing to consider and/or determine the Appellant’s complaint that inferences should be drawn from the failure of the Respondents to disclose documents including documents relating to alleged comparators (Birch and Capel).”

As observed in para. 22 above, the Appellant had relied by way of actual comparators on two other Union members who had received legal support with their claims.  The Tribunal made a careful analysis (at para 7.5 of the Reasons) of the treatment of, in particular, Ms Birch and found (see para. 7.16) that neither comparator had received more favourable treatment than the Appellant, having regard to the circumstances of the particular cases.  The point made under this ground is that there were, it is said, deficiencies in the Union’s disclosure on this aspect of the case and that those should have been, but were not, considered in deciding whether an inference of discrimination should have been drawn.  The short answer is that the Tribunal did not fail to consider these points.  It said, at para. 7.20 of the Reasons:
“We are satisfied that in … complying with the orders made by the Tribunal for disclosure of documents and information, the 1st Respondents were not evasive or obstructive.  They provided as much information as could reasonably be made available.”

In oral argument before us Mr. Martin accepted that he could show no error of law under this head.

32.	Ground (iv) is as follows:

“Failing to direct itself to consider whether or not, so far as the burden of proof was concerned, it was appropriate to consider the first stage (prima facie or not) at all in view of the fact that a hypothetical comparator was alleged and thereafter failing to go straight to the second stage of considering whether any burden was discharged.”

We have some difficulty in understanding this ground, and Mr Martin was, with respect to him, unable to elucidate it for us.  He relied in his skeleton argument on Shamoon (above) and on Laing v. Manchester City Council [2006] ICR 1519.  But neither case says anything to the effect that Tribunals should in certain cases by-pass the “Igen first stage”; and Mr. Martin’s submission seems to be flatly contradicted by the observations of Mummery L.J. in Madarassy v. Nomura International plc [2007] ICR 867 – see at paras. 83-84 (p. 883 D-F).   Even if there were more to the point than we can see, this is just the kind of analytical game-playing which is to be deprecated.  The Tribunal made clear findings here (a) that there was nothing in the circumstances of the case that raised even a prima facie case of discrimination and (b) that, even if there were, it accepted the Union’s non-discriminatory explanations of the acts complained of.  Unless those findings can be shown to be wrong in law in their own terms that is the end of the matter.

33.	Ground (v) is as follows:

“If, which is denied, it was acceptable to assess the case at stage one, failing to consider the whole case, the bigger picture, for a prima facie case, and not applying stage 1 to each part of the case in turn.  The tribunal instead adopted a fragmented approach.  Further, the tribunal failed to direct itself to consider events taking place before and/or after the alleged discriminatory event to determine whether or not a prima facie case was made out in relation to each event.”

This was an attempt to apply to the circumstances of the present case the criticisms made of the Employment Tribunal’s decisions in Ghosh v. Williams [2005] UKEAT/149-150/05 and Rihal v. London Borough of Ealing [2004] IRLR 642.  We can see no sign whatever that the Employment Tribunal in the present case fell into either of the traps identified in those cases.  

34.	Ground (vi) is as follows:

“Perversely concluding that it was reasonable to construe the Appellant’s email of 19 March 2005 as a refusal of legal assistance, not least because the Appellant clarified that it was not a refusal in his letter to the Second Respondent of 25 March 2005.”

The question in the present case was not, as such, what the Appellant’s e-mail of 19 March 2005 meant but what was the reason for the Union’s response to it.  Mr Scott did not construe it literally but read between the lines and formed a view as to the Appellant’s real attitude.  It does not matter whether he was “right” to do so: what matters is whether he was to any extent influenced in reaching his conclusion either by the Appellant’s race or by his history of previous complaints.  The Tribunal found that he was not; and it was indeed careful to phrase its conclusion in para. 7.15 by reference to the Union’s conclusion rather than its own.

35.	Ground (vii) is as follows:

	“Misdirecting itself by:

(i)	failing to consider the reasons (or absence of reasons) for the Respondents’ two review decisions above and thereafter considering whether or not a discriminatory inference can be drawn from such reasons or absence of reasons;

(ii)	failing to consider and/or determine the significance of the reviewing officer having been made privy to the clear opinions of those with prior involvement in the Appellant’s case that legal assistance should not be granted.”

Although framed as applying to both “review decisions”, this ground is in practice concerned only with the first - see para. 17 above, and para. 7.17 of the Tribunal’s Reasons – since the second was not in truth a decision at all but a failure to reply to correspondence.  Mr Martin emphasised what he described as the “brevity of analysis” in para. 7.17.  In our view it is important to read the decision in that paragraph in the context of the Tribunal’s other findings.  It had already found – unchallengeably, as we believe – that the primary decision not to continue legal assistance was made for non-discriminatory reasons; and, more specifically, that there was nothing about the decision which raised a “case to answer”.  It was unnecessary to elaborate its reasons for coming to the same conclusion about the review.  As to point (i), the absence of any reasons given by Mr Mackney does not seem to us necessarily to raise any suspicion of discrimination.  As to point (ii), even if the fact that Mr Jones in conducting the review discussed the position with Mr Scott was bad practice (which it does not in fact seem to us that it was) we can see no basis on which it could by itself be treated as evidence of discrimination.   

36.	Grounds (viii) and (ix) are as follows:

“Failing to consider whether and/or determine that discriminatory inferences should be drawn from the Respondent’s failure to keep ethnic monitoring information concerning acceptances or refusals under the legal assistance scheme.
Failing to consider whether and/or determine that discriminatory inferences should be drawn from the manner in which the Respondents had answered the RRA Questionnaire and/or failing to give adequate reasons for its decision in this regard.”

The first point to note is that the Tribunal did not “fail to consider” whether discriminatory inferences should be drawn from the Union’s alleged failure.  At para. 7.20 of the Reasons it said:
“We have taken into account submissions made on behalf of the Claimant as to the failure by the 1st Respondents to monitor adequately the refusal of assistance to persons of ethnic minority under the legal assistance scheme. We are satisfied that in answering the race relations questionnaires … the 1st Respondents were not evasive or obstructive.”  

It went on to give detailed reasons why that was so.  We need not reproduce those reasons in full because they are not challenged.  In essence, they were that the Union’s computer systems did not permit this information to be recorded routinely and that the exercise of going through the files of every person who had applied for legal assistance and collating them with other files which showed the ethnic origin of the members in question would have been disproportionately burdensome.  Mr Martin did not attempt to show that the Tribunal was not entitled to accept those reasons, but he said in his skeleton argument:

“The Tribunal appears to have confined its considerations to whether or not this was so [viz the inability to maintain/obtain the data in question] rather than considering what the impact was of an admitted failure to maintain this data … This is inconsistent with the guidance in Dattani v. Chief Constable of West Mercia Police [2005] IRLR 327.  When large organisations fail to keep such data it really begs the question as to why systems have not been put in place to carry out this task, either electronically or manually.”

37.	We note that that submission is confined to the question of the Union’s failure to maintain the data in the first place, rather than the failure to attempt to obtain it ex post facto: this is not therefore a case of evasive answers to a questionnaire of the kind considered in Dattani.  We also note that Mr Martin submits only that that failure “begs the question” as to the Union’s reasons.  That is not good enough.  In order to raise a (potentially) arguable ground of appeal the Appellant needed to submit not simply that that question was raised but, positively, that the Tribunal ought as a matter of law to have concluded that the answer to it was one which raised an inference that the Union had discriminated against the Appellant.  Such a submission would have been hopeless, which is no doubt why Mr Martin fought shy of making it.  There was no evidence before the Tribunal which could have made a link between, on the one hand, the decisions which led to the design of its computer systems and, on the other, the decisions about the provision of legal assistance to the Appellant: the two matters are on their face wholly distinct.  It is important to emphasise that failures of the kind complained of are only relevant to the extent that they potentially shed light on the actual discrimination complained of and thus, necessarily, on the “mental processes” of the decision-taker.  Even if Mr Scott was involved in the decisions about the computer system (which was never established and seems rather unlikely), the most that that might conceivably have established was that he did not pay sufficient attention to the risk of discrimination in the provision of legal assistance.  Such a conclusion - which, we stress, we raise only for the sake of argument - would not be of any real assistance in deciding whether he had discriminated against the Appellant on the particular grounds alleged in this case.  

38.	We have only felt it worth dwelling on grounds (viii) and (ix) in as much detail as we have because we have observed a tendency in discrimination cases for Respondents’ failures in answering a questionnaire, or otherwise in providing information or documents, to be relied on by Claimants, and even sometimes by Tribunals, as automatically raising a presumption of discrimination.  That is not the correct approach.  Although failures of this kind are specified at item (7) of the “Barton guidelines” as endorsed in Igen Ltd. v. Wong [2005] ICR 931 (see at p. 957 B) as matters from which an inference can be drawn, that is only “in appropriate cases”; and the drawing of inferences from such failures – as indeed from anything else – is not a tick-box exercise.  It is necessary in each case to consider whether in the particular circumstances of that case the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in the light of any explanation supplied it does in fact justify that inference.  There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the Respondents did the act complained of, which in cases of direct discrimination is what the Tribunal has to decide.  In such cases time and money should not be spent pursuing the point.  

39.	We accordingly dismiss this appeal.