Appeal No. UKEAT/0025/09/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2009

Before
THE HONOURABLE MRS JUSTICE COX
MR P R A JACQUES CBE
MR G LEWIS 

CREATIVE SUPPORT LIMITED	APPELLANT

MR P A EGENE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR G BEALEY
(Consultant)
Peninsular Business Services Ltd
Litigation Department
Riverside
New Bailey Street
Manchester M3 5PB	
For the Respondent	MR P A EGENE
(The Respondent in Person)	

SUMMARY
RACE DISCRIMINATION
Appeal against Employment Tribunal’s decision to uphold the Claimant’s claim of racial discrimination.  Main ground took a Chapman v Simon point.  The specific complaints made were all rejected but the Employment Tribunal found discrimination on grounds of race in respect of a complaint not made.  Appeal allowed on that basis.

THE HONOURABLE MRS JUSTICE COX
1.	After a somewhat chequered history in the Employment Appeal Tribunal, this appeal has now been listed for a full hearing.  The Appellant, who was the Respondent below, Creative Support Limited, is a not-for-profit charity providing a wide range of mental health and learning disability services.  It is appealing from the judgment of a Manchester Employment Tribunal, presided over by Employment Judge Ms O’Hara and promulgated with Reasons on 12 March 2008, upholding a complaint of direct racial discrimination.

2.	The Respondents, represented by Mr Bealey, take a point based on Chapman v Simon [1994] IRLR 124 and contend that the Employment Tribunal erroneously made findings of discrimination in relation to matters which had not been complained about by this Claimant.  In further grounds of appeal they contend that the Tribunal erred in concluding that there was less favourable treatment of the Claimant on the facts found; in failing to identify the relevant comparator; and in drawing the inference that the less favourable treatment they had identified was on the grounds of the Claimant’s race.  Alternatively the judgment is said to be perverse or so inadequately reasoned as to fail the Meek test, that is that it fails to meet the adequacy of reasoning requirement established in Meek v Birmingham City Council [1997] IRLR 250.

3.	The Claimant, who appears in person before us, as he did below, contends that no error of law has been identified by the Respondents; and that they are seeking essentially to re-argue the facts.  He contends that the Employment Tribunal were entitled to conclude, as they did, on the facts found and the complaint upheld was one which can be read into the complaints of race discrimination which he had made.  Their judgment, he says, was correct in law and well reasoned.

The Facts
4.	Since there is a dispute between the parties, as to whether or not the discrimination complaint upheld was one about which this Claimant had complained, it is necessary to set out the facts in greater detail than would otherwise be the case.  The Claimant is of black-African origin.  He obtained his legal qualifications in Nigeria and had been living and studying in the UK since September 2006, when he commenced a one-year postgraduate course in Crime, Law and Society at Manchester University.  He had permission from the immigration authorities to reside in the UK until October 2007, and during that time to undertake paid work for 20 hours per week.

5.	In about December 2006, when he was living in Bolton, he applied for employment with the Respondents via a website advertisement, in which they sought to recruit support workers to work both full and part-time.  Funded by local authorities and health authorities, some of the Respondent’s establishments offered residential accommodation in addition to support services.  At the time with which we are concerned they employed about 1,300 people nationally.

6.	The Claimant completed an application form submitted on 2 December 2006, in which he expressed a preference for working in Manchester with people who had learning disabilities rather than mental health problems, and indicated that his student visa allowed him to work 20 hours a week.  The Claimant attended a group interview on 18 December 2006 and was then invited to attend an individual interview, which took place on 9 January 2007.

7.	The answers recorded to questions about his general circumstances show that he informed the Respondent that he could work part time for 20 hours a week, save for Tuesdays and Thursdays when he was not available.  He also told them that he was moving from Bolton to Oxford Road in Manchester to live and there was then discussion as to where he could be deployed given that he did not have his own transport.  At paragraph 6.4 of the Reasons the Tribunal said that:

“Contrary to an assertion made by the Claimant, the Tribunal find that the Respondents did not indicate to the Claimant during the course of the interview that employment by them was dependent on him moving from Bolton to Manchester.”

8.	The Claimant was interviewed on this occasion by a panel of two people, one of whom initially did not consider him to be suitable for appointment.  Following discussion, however, the scores were revised in the Claimant’s favour and, by letter of 17 January 2007, Laura Cork wrote to inform him that his application had been successful before that panel.  The Claimant was informed that he was now the “preferred candidate” for the post of part‑time support worker at the Makonnen House project.  This project, as the Tribunal found, is a residential programme for black-African men with mental health problems.  There are nine residents and ten support workers, nine of whom are black and three are Nigerian nationals.

9.	The offer of employment was said to be subject to a number of conditions, namely the receipt of satisfactory references, pre-employment forms, confirmation of his ability to work in the UK and criminal records checks.  The letter also stated that before a formal offer of employment could be made, or a start date confirmed, it would be necessary for the panel’s recommendation to be endorsed by the Respondent’s senior personnel.  The Claimant accepted in evidence that the offer was subject to this endorsement.

10.	The Claimant wrote accepting the offer on this basis and all the documentation requested was provided and was satisfactory.  On 25 February the Claimant moved from Bolton to the address near Oxford Road in Manchester.  The Tribunal again found that at no time after 17 January 2007 did the Respondents say to the Claimant that the position on offer was dependent on his moving to Manchester.

11.	At some point in February the Claimant was telephoned by Ms Cork and asked to attend Makonnen House on 27 February.  The Tribunal found that Ms Cork did not inform the Claimant either in the letter of 17 January or on the telephone, that Makonnen House was a mental health project and, therefore, not in accordance with the client group preference expressed in his application form.  This, however, was not regarded as significant because the Tribunal, at paragraph 6.9 of their Reasons, found as follows,

“In any event the Claimant told the Tribunal that even if he had known prior to the meeting on 27th February at Makonnen House that it was a mental health project he would still have attended and sought a position there.  In the Tribunal’s view this lessened the significance of the failure by the Respondents to make it clear to the Claimant, before offering him this position or requiring him to attend a meeting there, that the nature of the project was mental health rather than learning disabilities.”

12.	The Claimant attended for interview at Makonnen House at 4.00pm on 27 February as arranged with Sharon Sayed, the Support Coordinator at those premises.  He was seen there by both Miss Sayed and another coordinator, Mr Tara Redford.  In his ET1 the Claimant alleged that Miss Sayed had, 

“Started straightaway by subjecting me to a bout of unwarranted questions about which position I had applied for with Creative Support Limited, which country I was from and when I was going back to my country.”

13.	However, the Claimant’s evidence as to this was rejected.  The Tribunal concluded at paragraph 24, that those questions were not in fact asked.  What did happen at this meeting is set out at paragraph 6.10 and it appears that there was an unhelpful lack of structure and formality to the whole process.  The Tribunal found as follows,

“He was introduced to another member of staff and he then had a conversation with Miss Sayed and Mr Tara Redford who was also a Support Co-Ordinator.  From the evidence given this conversation took place whilst the Claimant was standing in or around Miss Sayed’s office.  Mr Redford’s task was to compile the rota for the workers at Makonnen House.  There was no note of the conversation.  The contents of the conversation were in dispute.  However, the Tribunal finds that Miss Sayed began by describing the project including the fact that it was concerned with mental health services for African men.  She then asked the Claimant which days he was available to work.  The Claimant confirmed he could work any days except Tuesday and Thursday when he was at College.  Miss Sayed asked the Claimant what he intended to do when his current course ended in September 2007.  It is not clear from the evidence of those present what the Claimant said in reply.  However, the Tribunal finds that the Claimant mentioned an intention to pursue further part time studies in the UK and a visit to Nigeria.  The Claimant did not say that he intended to return to Nigeria permanently.  Both Mr Redford and Miss Sayed conceded that this piece of information was critical and that they had failed to clarify this with the Claimant.  They both formed the view which they then reported back to Miss Cook that the Claimant intended to return to Nigeria permanently in September 2007.  They also mistakenly formed the view that the Claimant intended to pursue a full‑time course of study from September 2007.  The Tribunal finds that in relation to his availability for shifts, the Claimant did not provide answers of sufficient precision to enable Mr Radford or Miss Sayed to confirm his availability for certain shifts on those days when he was available.  Mr Redford mistakenly believed throughout the whole conversation that the Claimant was being recruited to a full‑time post.  The Respondents had not provided to Mr Redford a copy of the Claimant’s interview notes or application form.  Miss Sayed told the Claimant that if he intended to go back to college he would not be suitable for the post in which case he should contact Ms Cork.  Miss Sayed conceded that she failed to clarify whether any further studies which the Claimant intended to pursue would be on a full‑time or part time basis and that if he had said that they were part time he would have been eligible for employment.  Miss Sayed also confirmed that there were no learning disability posts in Makonnen House and that the Claimant ought to ask Ms Cork about going on the bank of staff operated by the Respondents.  The Claimant did not understand what that meant but did not ask for clarification.  Mr Redford and Miss Sayed reported to Ms Cork after the interview that the Claimant was not suitable for the post because they believed he was not flexible and not permanent.”

14.	The Claimant then received a letter dated 2 March from Ms Cork, in which the Respondent withdrew the offer of employment.  The reasons given were that there were no learning disability projects in Manchester and that, if the Claimant would be starting a new course in September, they were unable to proceed with his application.  Ms Cork admitted that this letter was poorly drafted and that she had not made it clear that there were no learning disability projects in Manchester at that time rather than, as the wording suggested, permanently.

15.	The Claimant was unhappy at this turn of events.  He wrote on 9 March 2007 asking the Respondent to clarify when it had become aware that the learning disability job for which he had applied in Manchester had disappeared.  In her response of 13 March, Ms Cook referred to the need for it to reconsider suitable vacancy options given his change of residence to Manchester and then stated as follows:

“At the time of interview we were also not aware that it was your intention to return to Nigeria in September 2007.  You also informed Tara Redford (Support Co-ordinator) that you would not be able to work certain days of the week due to course commitments which will not fit into the shift patterns at the project.  We would require an employee to work on a permanent long-term basis and not on a temporary contract in order to provide continuity of service of support to service users.”

16.	The Tribunal found that this reason was a different reason from that given in the letter of 2 March.  The Claimant replied on 26 March, accusing the Respondent of acting in breach of contracts and stating:

“You held out to have offered me a job thereby causing me to alter my position by moving house to a rented apartment in Manchester from Bolton where I had a free accommodation, loss of earnings and psychological trauma your decision has caused me.  Accordingly, I demand for the payment of monetary compensation of £20,000 which should be paid to me within two (2) weeks of the receipt of this letter, failing which I shall not only seek redress in the court of law to recover damages, but I shall also initiate criminal proceedings against you for discrimination and fraudulent representation without further recourse to you.”

17.	The Tribunal noted at paragraph 6.14, however, that:

“In neither letter from the Claimant does he state a denial of any statement by him of an intention to return to Nigeria permanently or any of the statements which had been attributed to him in the meeting on 27 February.”

18.	Ms Cook then invited the Claimant to meet her to discuss matters, although denying any breach of contract and any liability to pay compensation.  A meeting took place on 4 May 2007 attended by the Claimant, who was accompanied by a friend.  At this meeting the Claimant told the Respondents that he had never told any of their employees that he would be going to Nigeria in September 2007.  Asked what he was seeking to achieve, the Claimant said:

“I had thought we would put the matter of compensation on the table.”

He referred once again to going to the Tribunal.

19.	At paragraphs 6.17 and 6.18 the Tribunal found as follows,

“During the course of the meeting the minutes show that the Claimant did not raise any allegations of discrimination on the grounds of his race.  It is clear from the face of the correspondence that he did not raise this allegation in correspondence.  At the conclusion of this meeting the Claimant confirmed his intention to take the matter to the Tribunal.
Ms Cook gave evidence to the Tribunal that she had as a Senior Personnel Officer decided not to endorse the offer of employment.  Ms Cook also decided that she would not endorse it because upon receipt of the information from Mr Redford and Miss Sayed she formed the view that the Claimant had lied in the interview about his long-term intentions.  The Tribunal accepts that had the Claimant raised issues of race discrimination the Respondents would have had an opportunity and would have dealt with his complaints differently but that they were effectively prevented from doing so by the failure of the Claimant to raise those issues with them.”

20.	It appears that some evidence was adduced at the hearing as to other prospective employees where offers of employment had been withdrawn.  At paragraph 6.19 the Tribunal referred to the evidence of Ms Quirke who said that,

“She was aware of other cases where prospective employees having been classed as suitable for employment following an interview were then not employed by the Respondent because of their unavailability for shifts.  She also confirmed, as did other witnesses, that the details of a working pattern were confirmed following discussion with the project itself.  Ms Cork gave evidence that she was aware of another case where a person who had not been employed in Wigan following an interview in which she was successful because of her intention to be out of the country travelling.”

21.	In his ET1 lodged on 30 May 2007 the Claimant claimed wrongful dismissal and unlawful deductions from wages, both of which claims were dismissed.  No issue arises as to them.  He also alleged, under section 9 of the form headed “Other complaints, that it had been agreed between himself and the Respondent that a job offer was conditional upon his relocation from Bolton to Manchester and that the withdrawal of the job offer had caused him “serious financial dislocation” .  As is clear from the judgment the Tribunal rejected this allegation.

22.	In relation to his claim of racial discrimination the Claimant made essentially four complaints.  Firstly he alleged that Miss Sayed had subjected him to a bout of unwarranted questions, to which we have already referred in this judgment; secondly, he complained that the job offer had then been withdrawn; thirdly, he claimed that the reasons given for withdrawing the offer were contradictory and racially based; fourthly, he claimed that the Respondent had treated him differently from its other employees, in that he was singled out and ordered to report to Makonnen House project straightaway, without first being sent for induction/training courses at head office as other prospective employees were.

23.	It seems that the Claimant did not ultimately pursue this fourth allegation as a separate claim at the Tribunal hearing.  As is clear from paragraph 5 of the judgment the Claimant was asked at the outset of the hearing to clarify the acts of less favourable treatment that he was relying on in support of his claim of racial discrimination and he indicated the following, 

“5.1  The questions asked of him by Sharon Sayed on 27 February 2007 at Makonnen House.
 5.2  The withdrawal of the offer.
 5.3  The reasons given for the withdrawal of the offer.”

24.	Although Mr Bealey appears to have made some reference to the fourth allegation in his closing submissions as part of the background there is no finding of fact anywhere in the Decision as to this specific allegation.  Mr Bealey tells us, and the Claimant did not disagree, that the list at paragraph 5was identified by the Claimant and agreed, and the parties proceeded on the basis that those were the specified complaints that were being pursued.  Certainly that fourth allegation is not upheld as amounting to less favourable treatment on the grounds of the Claimant’s race.  The Claimant addressed the issues identified at paragraph 5 in his witness statement.  

25.	After directing themselves correctly (see paragraphs 7 to 12 of the judgment) as to the relevant statutory provisions and legal principles governing direct race discrimination and the burden of proof, the Tribunal referred to the parties’ submissions.  We note that Mr Bealey submitted, amongst other things, that no comparator had been identified; and that in correspondence the Claimant had not denied the statement that he would be returning to Nigeria in September and had not set out the shifts which he would be able to work.  Any inefficiencies and inconsistencies in the Respondent’s handling of the matter on 27 February had to be viewed in the context of the kind of organisation that it was.  It employed a significant number of staff of African origin and had increased the Claimant’s scores at his initial interview so as to recommend him as the preferred candidate.

26.	The Claimant’s closing submissions related essentially to the allegations he had identified as set out at paragraph 5 save that he appears also to have been claiming that the figures in the initial interview form had been falsified, an allegation not raised previously, as the Tribunal noted.

The Tribunal’s Decision
27.	The Tribunal’s reasoned conclusions in relation to the complaint of discrimination are set out at paragraphs 24 to 28.  At paragraphs 24 to 26 it is clear that they are addressing the Claimant’s complaints of discrimination identified at paragraph5, in relation to which they found as follows,

“24	The Tribunal found as a fact that the questions which the Claimant alleged had been asked by Miss Sayed in the meeting of 27 February, such as which country was he from and when did he intend to return, were not in fact asked by her.  The Tribunal also found that Mr Redford had been present during the meeting.  The fact that the Claimant denied his presence was considered by the Tribunal not to be an indication of the Claimant’s lack of credibility.  The Claimant clearly had had an exchange with Mr Redford even on his own evidence.  The fact that the exchange took place in a meeting area rather than in a clearly defined office setting was the responsibility of the Respondent but this had clearly caused the Claimant a certain amount of confusion.
25	In relation to the withdrawal of the offer the reason given by Ms Cook for the withdrawal was her belief that the Claimant had lied about his intentions in relation to his permanent return to Nigeria.  Albeit that belief may have been mistaken and if Ms Cook had been given information which was correct she may not have withdrawn the offer.  In the Tribunal’s view Ms Cook decided to withdraw the offer because of the information given to her by Mr Redford and Miss Sayed about the Claimant’s intentions.  In the Tribunal’s view, whilst this may have been mistaken, it was not less favourable treatment on the grounds of the Claimant’s race.
26	Referring then to the reasons given for the withdrawal of the offer and the fact that the reasons were different in the two letters sent by the Respondents.  The Tribunal considers that to give inconsistent and different reasons in different letters could be described as shoddy treatment especially in circumstances where Ms Cork was performing duties with very little supervision and that her ability to draft letters was perhaps one which required some greater deal of supervision.  However, the fact of having given inconsistent reasons did not constitute less favourable treatment on the grounds of the Claimant’s race.”

28.	However, the Tribunal then continued as follows at paragraphs 27 and 28,

“27	The Tribunal considered the circumstances in which the interview between the Claimant and Mr Redford and Miss Sayed on 27 February 2007 took place taking particular notice of the causal connection between that interview and the ultimate outcome, namely the withdrawal of the offer.  The Tribunal identified the following characteristics of this interview in the context of the analysis at the initial stage of the test of discrimination explained at paragraphs 10 and 11 above:
•	the failure by Mr Redford and Miss Sayed to clarify either the questions which they were putting to the Claimant or his responses
•	the failure to inform Mr Redford that the Claimant had been offered employment on a part-time 20 hours per week basis
•	the failure to take any notes of the meeting
•	the failure to offer the meeting in a structured way where the Claimant was sitting down in a proper interview situation
•	reaching a judgment which was adverse to the Claimant on the basis of answers which were obviously tentative
•	the failure to inform the Claimant that his answers to these questions might lead to the withdrawal of the offer
Taken as a whole, these features did in the Tribunal’s view constitute less favourable treatment on the grounds of the Claimant’s race.  Miss Sayed conceded that she ought to have carried out this interview in a different manner.  The explanation, insofar as it could be deduced from the evidence given by the Respondents’ witnesses, related to the operational need of the Respondents to establish the availability of potential workers within their shift pattern whereby the workers were available on a flexible basis to fit in with the shifts operated by the Respondents.  What the Respondents were effectively saying was that they considered it appropriate to dispense with the requirements normally expected consistent with equal opportunities policies in a recruitment context where they were seeking to slot potential workers into a shift pattern.  In the Tribunal’s view the explanation given by the Respondents was not adequate and the Tribunal was left with no alternative but to draw an inference that this less favourable treatment was on the grounds of the Claimant’s race.
28	Considering the evidence offered by the Respondent on the question, which was the operational need, the Tribunal formed the view that this was not adequate.  In these circumstances, the Tribunal drew the inference as stated above.”

29.	This led them at paragraphs 2 and 3 of the judgment to rule as follows,

“2	With the exception of the point set out at paragraph three, the claims under the Race Relations Act 1976 are dismissed.
3	The respondents have discriminated against the Claimant on the grounds of his race when on 27 February 2007 they purported to conduct an interview with him in circumstances where the interview, which led to the withdrawal of an offer of employment, was conducted in a totally unstructured way where the Claimant was standing up in a general meeting area and those conducting the interview failed to clarify their questions or seek clarification of the Claimant’s responses to their questions and failed to take any notes of the interview.”

The Appeal
30.	We shall deal first with the Chapman v Simon point because in our judgment, as this recitation of the facts, the specific complaints made by the Claimant and the Tribunal’s conclusions demonstrates, the point has considerable force.  In Chapman v Simon as Balcombe LJ said at paragraph 33:

“The jurisdiction of the Industrial Tribunal is limited to complaints which have been made to it.”

31.	Peter Gibson LJ also observed at paragraph 42 as follows,

“It is the act of which complaint is made and no other that the Tribunal must consider and rule upon.  If it finds that the complaint is well founded the remedies which it can give the complainant under Section 56(1) of the 1976 Act are specifically directed to the act to which the complaint relates.  If the act of which complaint is made is found to be not proven it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”

32.	These dicta were applied by the former President of the EAT, now Elias LJ, presiding in Law Society v Bahl [2003] IRLR 640 and upheld by the Court of Appeal.  At paragraph 90 the Employment Appeal Tribunal stated,

“A Tribunal should not make findings of unlawful discrimination in respect of any matter which was not in the originating application or the subject of subsequent amendment.  It is not for the Tribunal to extend the range of complaints of its own motion (see Chapman v Simon [1994] IRLR 124).”

33.	These principles were also recently applied in Manchester Metropolitan University v Da Silva UKEAT/0024/07/LA 26 September 2007, in an appeal from an Employment Tribunal presided over by the same Employment Judge who is concerned in this appeal.  HHJ Peter Clarke, presiding, referred again to the principle in Chapman v Simon and applied it in that case.  The principle seems to us to be equally applicable in the present appeal.

34.	We recognise that some leeway should be afforded to a litigant in person in relation to the formulation and pleading of complaints of discrimination, but the principle in Chapman v Simon is clear.  Further, in this case we bear in mind that the Claimant was himself legally qualified and, as is clear from the documents and correspondence, expressed himself clearly and articulately.  He specified in his ET1 those complaints to which we have referred and, when asked at the outset of the hearing to clarify the matters that he was relying on in support of his claim of less favourable treatment on the grounds of race, he identified those set out at paragraph 5 of the judgment.

35.	Only the first of the three there listed related to the conduct of the interview on 27 February.  That complaint was based entirely on questions Miss Sayed was alleged to have asked at the start of the interview, which allegation the Tribunal expressly rejected at paragraph 24 of the judgment.

36.	The Claimant made no complaint in his ET1 or his witness statement that the conduct of the interview itself and the lack of structure and clarification identified by the Tribunal at paragraph 27 constituted less favourable treatment on the grounds of his race.  Nor did he allege that the Respondent had failed to comply with normal equal opportunities policies in seeking to slot potential workers into a shift pattern.  There are no findings of fact to this effect, in particular at paragraph 6.10 and nothing before us to indicate that the Respondent’s witnesses addressed compliance with or departure from recruitment equal opportunities policies at this interview in their evidence, or had a proper opportunity to deal with this particular suggestion.

37.	Indeed, in her answers to questions from the EAT in preparation for this appeal, as to the comparator which had been identified by the Tribunal, we note that the Employment Judge 

refers in paragraph 2 to there being:

“No evidence from the Respondents concerning its procedure for recruitment normally used after an offer letter had been sent.”

No doubt had this been a specific complaint made by the Claimant, the Respondent would have been able to respond to it and prepare for the hearing accordingly.

38.	The Tribunal also rejected the other complaints listed at paragraph 5.  Ms Cook’s mistaken belief as to the Claimant’s intentions, which led to the withdrawal of the job offer, was found expressly not to amount to less favourable treatment on the grounds of race.  So was the providing of inconsistent reasons for the withdrawal set out in correspondence.  

39.	The Claimant, in able and succinct submissions, sought to persuade us firstly that the matters upheld as race discrimination were matters about which he had complained.  He sought to persuade us that the complaints adjudicated upon could be read into the particulars set out at box 6.2 of his ET1.  He has, however, been unable to persuade us that either this document or indeed any other document in the case shows this to be the case and we therefore reject this submission.  

40.	He also submits that the Employment Tribunal is a fact-finding body with an express, statutory power to draw inferences from primary facts.  This, of course, is correct as far as it goes, but it does not seem to us to address the particular problem with which we are faced in this case, namely the principle established in Chapman v Simon.

41.	The Claimant said, correctly, in the course of his submissions that the particular complaint does not have to be contained in precise words in the ET1.  Whilst agreeing with that submission there do, nevertheless, have to be words of sufficient clarity to enable the parties and the Tribunal to recognise that a specific complaint of racial discrimination is being made so that it is responded to and adjudicated upon.  The Employment Tribunal’s conclusion, in our judgment, therefore, falls foul of the Chapman v Simon principle for the reasons that we have given.  

42.	That finding is sufficient to dispose of this appeal which must, therefore, be allowed.  It is, consequently, unnecessary for us to deal with Mr Bealey’s additional grounds, upon which we have heard no argument.  We observe, however, that our provisional view, having read the Decision and the appeal papers, was that a number of these grounds had merit.  In particular, it seems` to us hard to understand how the list of deficiencies in the 27 February interview, listed at paragraph 27, was found to constitute less favourable treatment than that which would have been afforded to a hypothetical comparator, selected as appropriate by the Tribunal.

43.	The Employment Judge’s response to the further questions asked by the EAT does not seem to us to explain why the Tribunal held that a hypothetical comparator would not have been treated in the same way as this Claimant.  Indeed, there appears to be no reasoning in paragraph 27, or in the further answers to questions, to indicate that the Tribunal in fact found that a hypothetical comparator would have been treated differently.  Detrimental treatment of the kind particularised at paragraph 27 tells us nothing at all about whether it has resulted from discriminatory conduct.

44.	We all, provisionally, shared concern, therefore, as to the adequacy of the reasoning in this judgment.  However, for the reasons we have given, the first ground of appeal having succeeded, it is unnecessary for us to hear full argument upon them and to determine them in this appeal.

45.	For the reasons we have given this appeal is therefore allowed.