Appeal No. UKEAT/0006/11/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 May 2011
Judgment handed down on 4 November 2011

Before
HIS HONOUR JUDGE HAND QC
SIR ALISTAIR GRAHAM KBE
MR A HARRIS

(1) TRANSPORT FOR LONDON
(2) MR A McGILL	APPELLANTS

MR A E ADEREMI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR ANDREW SHORT
(One of Her Majesty’s Counsel)
&
MR DAVID E GRANT
(of Counsel)
Instructed by:
Transport for London Legal Services
Windsor House
42-50 Victoria Street
London
SW1H 0TL
	
For the Respondent	MR KEVIN HARRIS
(of Counsel)
Instructed by:
Messrs HCL Hanne & Co Solicitors
St John’s Chambers
1C St John’s Hill
London
SW11 1TN	

SUMMARY
RACE DISCRIMINATION
Direct and Victimisation 
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie case that it was on the grounds of race.  The phrase “from which it could conclude” at paragraph 45 of the judgment is redolent of precisely the same error identified by the Court of Appeal at paragraph 31 of the judgment in Igen v Wong [2005] ICR 93 and there had to be a finding that Mr McGill had treated the Respondent less favourably before the second concept arose. 

The conclusion that there was less favourable treatment of the Respondent by TFL rested to a considerable extent, on the finding at paragraph 57 of “institutional, unconscious, attitudinal racism, at least in relation to persons of black African ethnicity” in TFL and was a finding based on a collection of single incidents of limited scope not justifying an inductive conclusion so broad in scope; the conclusion was unsound; Commissioners of Inland Revenue v Morgan [2002] IRLR 776 followed.

Victimisation also rested in part on the above finding and was equally unsound.

Remitted to a differently constituted Tribunal for a complete re-hearing.

HIS HONOUR JUDGE HAND QC 
Introduction
1.	This is the full hearing of an appeal from the judgment of an Employment Tribunal, comprising Employment Judge Stewart, Ms Ihnatowicz and Mr Carrol, sitting at London Central over 3 days in June 2010 (with a further day in June for judicial mediation) and 5 days in August 2010 with a further 3 days of deliberation in September 2010.    The judgment and written reasons were sent to the parties on 28 September 2010.

2.	There has been some inconsistency as to which Appellant is to be described as the First Appellant and which is to be described as the Second Appellant.  Whilst we appreciate that Mr McGill was named as the First Appellant in the Notice of Appeal, most of the documents and the cause list nominate Transport for London (“TFL”) as the First Appellant and Mr McGill as the Second Appellant.  We can avoid any further confusion by referring to them as TFL and Mr McGill respectively.

3.	The Employment Tribunal found that both the Appellants had directly discriminated against the Respondent on the grounds of his race and that TFL had victimised him; other allegations of victimisation against Mr McGill were dismissed, as was a claim of unlawful deductions from wages against TFL.  There is no cross appeal.

4.	At the hearing the Respondent appeared in person; before us he was represented by Mr Kevin Harris of counsel.  Both Appellants were represented by Mr Richardson of counsel at the June hearing before the Employment Tribunal but in August Mr David E Grant of counsel appeared for them.  Before us he appeared again, this time led by Mr Andrew Short of leading counsel.

The issues
5.	The issues (pertinent to this appeal) to be decided by the Employment Tribunal at the hearing were identified at paragraph 7 of the judgment as:

i.	Whether the Respondent had shown facts from which the Tribunal could conclude, in the absence of an explanation from the Appellants “that he had been subjected to direct race discrimination in respect of his career advancement and promotion?”

ii.	If that was shown then the next question to be answered was had the Appellants “shown by cogent evidence on a balance of probabilities that their treatment of the [Respondent] was in no way whatsoever on account of his race?”

iii.	Did the [Respondent] complain of race discrimination and, if so, when?

iv.	If so, was he treated less favourably because he had made such a complaint by not having been “appropriately redeployed?

Paragraphs i and ii are related to direct race discrimination; iii and iv are related to victimisation.

The factual background
6.	The Respondent, who is of black African origin and ethnicity, is well qualified; he has no less than three degrees.  He started working for TFL in 2002.  In May 2006 he became a Customer Services Manager.  The post was at Band 3 in the pay structure.  The Employment Tribunal accepted that the Respondent was told that he would henceforth be on the fast track to promotion.  Subsequently his appraisals were “consistently excellent” and he was described as an “outstanding employee”.  In November 2008, after he had taken on the responsibility for what was called the Oyster Back Office in addition to his other managerial responsibilities in Customer Services he asked to be made a Band 4 Manager.  In April 2009 he set out his case for a review of his salary banding by reference to his duties and the way in which two other managers, a Mr Altinok, who was of Turkish origin, and a Mr Cowan, who was from New Zealand, had been treated.  They had been seconded to the work they were doing as Band 2 Managers but had been given Band 3 status as a result of the experience gained on secondment and without being asked to participate in any competition for promotion.

7.	Mr McGill did not think that the Respondent’s work merited a Band 4 appointment and said so to his superior, Mr Henderson, who had the job title of director.  Although he agreed with the Mr McGill’s assessment, Mr Henderson decided that the work the Respondent was doing should be evaluated.  It is not entirely clear when that process started but by June 2009 it was being said that the Respondent’s work could not be evaluated and it seems that his job had not been evaluated at the time of the hearing.  Mr Henderson did arrange, however, for him to receive a merit award.  When the Respondent said that his application had not been simply about money Mr Henderson replied (see paragraph 20 at page 8):

“Yes I know it wasn’t about money.  Seemed unfair to me that’s all.”

8.	Then in July 2009 there was an unfortunate typographical error in a comment from Mr McGill written in an email reply; he wrote “Lick Ass” instead of “Kick Ass”.  The Employment Tribunal accepted that the word had been mistyped but rejected the evidence of Mr McGill that he had apologised.  There was an appraisal by Mr McGill of the Respondent in October 2009.  As a result of it the Respondent became concerned about the Appellant’s suggestion that the Appellant would be (see paragraph 23 at page 9):

“… at a disadvantage in the up-coming reorganisation in December because he lacked contact centre management skills/experience.”

9.	The Respondent registered his concern in an email on 13 October 2009; this was described by the Employment Tribunal as his first grievance.  The following day there was a meeting between the Respondent and Mr McGill but the Respondent found it to have been unsatisfactory.  On 16 October 2009 the two met Mr Henderson and following that meeting the Respondent set out his complaints in a long email.  This the Employment Tribunal described as the second grievance and the complaints were summarised at paragraph 24 of the judgment (see page 10 of the bundle) as follows:

“  …  his career progression, duties and achievements, including tabulated comparisons with his management colleagues in comparison to whom his career “remains static and this not for lack of ambition, taking up additional tasks or competence” but because he has not been given the opportunity to move forward seeking to understand “why is [the Second Respondent] omitting to do key things that could promote my career” and adding: “I am asking myself what makes me different to the other within his team whom he has promoted and developed. I hope you will kindly explore that question as well.””

10.	The Respondent received no response to this and he went off work through stress related illness at the end of November 2009.  He had not returned by the time the Employment Tribunal started to hear the case in June 2010.

11.	On 2 December 2009 he sent a long email, described by the Employment Tribunal as his third grievance, and he attached the other two emails.  He said that he wanted the following (see paragraph 26 at page 10):

“  … the entire history of events to date including the comparators, some of whom had failed to achieve the Band 3 benchmark but were seconded nevertheless with full documentation, the failed job re-evaluation and his desired remedies - Band 4, back-pay lost, a move to another area in the organisation and full investigation of his grievances”

and he also said this (see also see paragraph 26 at page 10):

“… I feel disregarded and treated with levity by [the Second Respondent] who constantly ignores my development needs” … when compared with Paul Cowan, Volkan Altinok, Darren Kelly and Tim Marsh.  “I leave you to draw your own conclusions as to what makes these people different to me.  Being treated less favourably than them must be because of something peculiar to me and [the Second Respondent] needs to prove otherwise … I bear these gentlemen no grudges … I merely use them as comparators.”

12.	Whether taken in isolation, or in conjunction with the wording of the second email, the Employment Tribunal concluded that amounted to a clear allegation of race discrimination.  An Occupational Health counsellor, Ms Burkin, requested that the Respondent should be moved to another department when he recovered his health and returned to work.  A day later the Respondent made the same request.  What he did not know then or at any time before the hearing was that Mr McGill had removed himself from line management responsibility for the Respondent.  Subsequently TFL made it clear that the Respondent would not be moved to another area, suggested that the additional Oyster card responsibilities should be removed and that the Respondent should concentrate on his management of others.  TFL never referred to the Respondent’s issue with Mr McGill.  On 14 December 2009 the Respondent said (see paragraph 32 page 12):

“… “I am not suffering from stress because of the wider remit I have been covering for more than a year.  The stress is due to the fact that my line manager is discriminating against me and treating me less favourably than others under his management; coupled with the fact that Ian Henderson refuses to act on the matter to ensure that my assignment to cover both customer relations and Oyster is documented with attendant remuneration and JD because his hands are tied.” ”

13.	TFL’s response to this was curt; it informed the Respondent that his grievance would be dealt with under section 2 of the grievance policy and that his request for a move was denied and enquired when he would be returning to work.  On 16 December 2009 the Respondent filed his ET1 form.

14.	A grievance investigation was held on 11 January 2010, in the course of which both Mr McGill and Mr Henderson were spoken to.  A grievance hearing took place on 20 April 2010.  The Respondent was accompanied by a colleague representative.  Complaints were made about the refusal to move the Respondent pending the outcome of the grievance, about the delay in dealing with the grievance and about the stance taken by the Human Resources department in dealing with the grievance.  The hearing was conducted by Mr McLeod, who was the director of Group Marketing.  He not only interviewed Mr McGill and Mr Henderson but also Ms Page, a performance and services manager, who had been involved in the job evaluation process, which seems never to have got beyond the request stage.  A note, comprising a single sheet of A4 paper signed by Mr McLeod on 10 June 2010, was produced by TFL, as being the whole record of all three interviews, which had lasted between one and a half and two hours.  There was considerable controversy at the Employment Tribunal hearing as to whether this was really a contemporaneous record but the Tribunal found that it was, reasoning at paragraph 38 on page 13 that:

“ … it was hard to imagine why anyone would wish to subsequently fabricate such an inadequate and scrappy “supportive” document. ”

15.	This is consistent with the Employment Tribunal’s general view of TFL’s conduct, as set out at paragraph 4 of the judgment; we do not think it profitable to go into this in any detail.  Suffice it to say that the Employment Tribunal explored deficiencies in disclosure and set out a record of the case management decisions made by the Employment Tribunal in reaction to those deficiencies; the penultimate sentence of paragraph 4 of the judgment at page 4  provides a good summary:

“ The Tribunal formed the overall view that the Respondent’s conduct of its case in respect of the disclosure of documents and information was shambolic and unhelpful to its own case as well as inconvenient for the Tribunal and stressful for the Claimant, particularly as he was unrepresented. ”

The Employment Tribunal’s judgment
16.	The Employment Tribunal found that there had been direct discrimination by both Mr McGill and TFL and victimisation by the latter.  The conclusions on direct race discrimination are to be found in paragraphs 42 to 61 at pages 15 to 20.  Of the five comparators put forward for consideration, one, the comparison with Ms Djamila Guernou, a Band 4 manager of Algerian extraction, was regarded by the Employment Tribunal as not appropriate (see paragraph 42).   The cases of Messrs Cowan, Altinok, Kelly and Marsh were more closely examined.  Both they and the Respondent had started at Band 2 and like him they had either done Band 3 work or had been re-graded as Band 3.  The Respondent’s complaint was that he had not been confirmed as Band 4 but there had been no Band 4 vacancy to which the Respondent could be seconded or promoted.  There was a second difference; unlike the Respondent, these comparators had been moved or seconded from existing roles into other roles whereas the Respondent’s complaint was that he should be getting higher pay for doing the job he was already doing.  For those reasons, whilst accepting that they were part of the factual matrix the Employment Tribunal felt unable to accept them as comparators.  Instead, it decided to consider the position of a hypothetical comparator, which it described thus at paragraph 44 at page 15:

“ … a white man with the same skills, qualities, education, work record, high quality appraisals, ambition and style of dealing with colleagues, which the Tribunal found to be polite, respectful, courteous and at times understated and yet firm, ambitious, appropriately assertive and with a fluent and articulate written style.”

17.	At paragraph 45 the Employment Tribunal, so far as Mr McGill was concerned, found two facts:

“… from which it could conclude, in the absence of an explanation from the Respondents, that the Claimant had been treated less favourably than real and/or hypothetical comparators in respect of his promotion /career development:”

Firstly, the use by Mr McGill of the expression “he had many mouths to feed” had racist overtones.  Mr McLeod had accepted as much under cross examination.  Secondly, and more generally, the Employment Tribunal regarded the fact that the Respondent was of black African origin and his comparators were not as significant, particularly when he had been admitted to Band 3 as an “outstanding performer” whereas two of the others had acted up and then been confirmed as Band 3 and two had been acting up and, although they had not been confirmed as substantive Band 3, had been paid more.

18.	So an explanation was called for from Mr McGill, who had not supported promotion to Band 4 and from TFL, who had not promoted him.  TFL’s explanation was that there were no Band 4 vacancies and this was accepted by the Employment Tribunal.  Mr McGill said that he did not support a move to Band 4 because manager’s pay should be levelled out.  The Employment Tribunal regarded this as strange; it ignored differing abilities and there was no evidence it was “part of any general policy”.

19.	Mr McGill’s evidence was that he was uncomfortable about only one person under his management being the subject of job evaluation; the Employment Tribunal found that others did not have that difficulty.  He had said that “many mouths to feed” was a northern expression, coming from his childhood in the North but that was not an explanation that had been proffered during the internal investigation.  In any case, Mr McGill knew that the Respondent had a wife and two children and he was also aware that the Respondent’s stance was motivated by a desire for enhanced status rather than money.  The Employment Tribunal were not impressed by Mr McGill’s evidence that he not a racist because he was engaged to an Asian woman

20.	There were other matters; Messrs Marsh and Kelly had been seconded and two Asian employees with higher scores had not been; there had been no explanation of that.  Moreover, at the Employment Tribunal there was no rational explanation for Mr Cowan’s secondment, particularly having regard to the fact that Mr Cowan’s progress had been much more rapid than that of the Respondent.

21.	All these matters led the Employment Tribunal to reject Mr McGill’s explanation as sufficient to discharge the burden of proof and they found a sub-conscious racial motive (see paragraph 52 at page 17):

“The Tribunal’s unanimous conclusion on all the evidence before it was that the Second Respondent had failed to satisfy it on a balance of probabilities that the Claimant’s race had played no part whatever in his treatment of him.  The Tribunal concluded unanimously that although the Second Respondent objectively and consciously perceived and appreciated the Claimant’s high quality performance in his role, there was an operative sub-conscious racism in his attitude towards him which manifest (sic) in a reluctance in fulfilling his own promises of advancement, which the Claimant’s performance in post clearly fully merited, and a foot-dragging delay in actively promoting his advancement towards a Band 4 position when compared to his proactive advancement of other managers whose abilities were often less than the Claimant’s.  The Tribunal was not satisfied the Second Respondent would have treated the hypothetical comparator with the same reluctance and delay.”

22.	The Employment Tribunal then turned to TFL.  It regarded the following facts as requiring an explanation (see paragraph 53):

i.	Mr Henderson’s lack of reaction to the “many mouths to feed” remark;

ii.	Mr McLeod’s similar lack of reaction to it, coupled with the fact that he had spotted that it had racist connotations but had dismissed it as being only one instance and not at “the high end”

iii.	none of the witnesses called by TFL had received any racial awareness or equal opportunities training;

iv.	the failure of TFL’s Human Resources Department to grasp that the Respondent was making allegations of race discrimination despite what the Employment Tribunal regarded as a clear statement to that effect by the Respondent in his emails; on the contrary it had been said that he was not complaining of “any behaviours”;

v.	the fact that the Respondent’s job evaluation had been stopped but others had proceeded.

23.	Mr Henderson’s explanation as to the “many mouths to feed” not being racist because he was thinking positively was undermined because both he and Mr McGill knew that the Respondent’s primary purpose in seeking re-banding was status not money and by the fact that Mr Henderson was only supporting re-evaluation because he believed it would have a negative outcome.  Thus, concluded the Employment Tribunal, neither Mr McGill nor Mr Henderson was acting in good faith when supporting job evaluation.  Moreover, Mr McLeod’s position was ambivalent.  He had apparently recognised that the expression “many mouths to feed” might carry racist overtones but then was prepared to say there was no evidence of racist motivation in the letter he wrote informing the Respondent as to the outcome of the grievance and this despite the fact that he was surprised racism had not been raised at the actual grievance hearing.  The Employment Tribunal concluded at paragraph 57 at page 19 that there was:

“ … at least in this segment of the First Respondent’s organisation, what can only be described as institutional, unconscious attitudinal racism, at least in relation to persons of black African ethnicity; a corporate blindness to indications of racist thinking and to the possible implications of a complaint of race discrimination being raised in the context of a wider complaint of unfair or less favourable treatment.”

24.	As to why job evaluation had not proceeded in the case of the Respondent the Employment Tribunal did not accept the explanation of a “job freeze” because:

i.	that had never been said when the Respondent’s case was submitted for evaluation;

ii.	other cases had proceeded to evaluation;

iii.	a “job freeze” was never advanced at the time as a reason for delaying or stopping the Respondent’s job re-evaluation; the only information supplied at the time was that matters were held up pending clarification and there was never any clarification; 

iv.	Mr McLeod’s explanation that the evaluation had been held up by a reorganisation, as was the general policy in such circumstances, was unsupported by written evidence of any such policy.

25.	So the Employment Tribunal reached the conclusions set out at paragraphs 60 and both paragraphs 61 (there are two paragraphs 61) of the judgment (see page 20); they read:

“60.  In the absence of a Band 4 vacancy, job re-evaluation was the only route forward for the Claimant.  The Respondents’ explanations for the halting of this process were not consistent with the evidence before the Tribunal and in the absence of any more cogent explanation, the Tribunal was not satisfied that the Claimant’s race had played no part in this process, particularly in the light of the Tribunal’s finding of the bad faith in which the Claimant’s management had put forward his job re-evaluation request in the first place, their failure to provide the clarification sought by the job evaluation team and Mr McLeod’s own grievance finding that the process was “not entirely clear”.  This must be taken against the background of the far more rapid pace of advancement and promotion (by whatever means) of more junior and less able colleagues than the Claimant, where he alone was of black African ethnicity and the Tribunal’s finding of institutional racism as defined in paragraph 57 of these Reasons.
61. The Tribunal did not accept, on all the evidence that the hypothetical comparator would have been treated as the Claimant was in respect of his career progression and promotion.
61. The Claimant’s complaints of direct race discrimination against both First and Second Respondents are accordingly well founded and succeed.  On the evidence before it at the Full Merits Hearing, the Tribunal formed the view that the greater responsibility as between the Respondents lies with the First Respondent, whose corporate culture appears to be permissive of, if not engendering, racism.”

26.	The act of victimisation arose from the third grievance (i.e. the email of 2 December 2009).  That contained an explicit allegation of race discrimination and a request to be moved.  TFL’s grievance policy requires consideration as to whether there is a need to move from the place of work whilst the grievance is under consideration.  This was usually done and the Employment Tribunal did not accept the explanation put forward that the Respondent was not moved because to do so would have reduced flexibility.  The evidence of Ms Burkin to that effect was rejected as an attempt to go back on earlier evidence that moving the employee was the usual practice.  Indeed, when it had been asserted at the grievance hearing that moving was the usual practice that had never been challenged by TFL.  The Employment Tribunal also found Mr Henderson’s evidence to be vague.

27.	So the Employment Tribunal concluded that it had been the policy and custom and practice for those raising grievances to be moved out of their place of work; in any event that was a fair procedure.  In those circumstances the Employment Tribunal reached the following conclusion in paragraphs 64 and 65 at page 22:

“64. The Tribunal concluded on all the evidence before it that both the Respondent’s policy and normal practice was for staff raising grievances against other staff to be found a temporary alternative placement, wherever possible.  This is in any event in accordance with the accepted norms of the conduct of fair and unimpeded grievance process in the workplace and an employer’s duty of care to its employees – whether complainants or those against whom complaints are made.   The Claimant’s request was first made by the Claimant himself … and this was forwarded to Ms Fearon-McCaulsky … [who] … told Ms Burkin it was not necessary … .   The Tribunal concluded that given this chronology and the evidence of Mr Henderson, no genuine or serious consideration whatever was given to the relocation request in contravention of the First Respondent’s grievance policy, and that no attempt was made to comply with it. 
 65. The Tribunal was at a loss to understand why the Claimant’s request for temporary relocation, backed up by his Counsellor, and, incidentally, on 6 May 2010 by the OH Doctor, has been persistently ignored by the First Respondent, in contravention of its own policy and normal custom and practice up until the outcome of the grievance … No coherent explanation of this state of affairs was offered by the Respondent, whether in the particular person of Mr Henderson whose decision it apparently was, or otherwise.  There was no evidence whatever before the Tribunal that any other member of staff who made a grievance of whatever kind against his/her line management had been treated in the same way as, or differently from, the Claimant in respect of a request for temporary relocation pending the resolution of a considerable grievance.”

28.	The Employment Tribunal rejected at paragraph 65 the explanation that there had not been any “suitable temporary relocation vacancies, even on a temporary project basis” and summarised its conclusions at paragraph 66 as follows:

“The Tribunal unanimously drew the inference from the above cumulation of facts that the Respondent’s wilful disregard for the Claimant’s request for relocation pending the outcome of his grievance against his line management for difference in treatment predicated upon his race, was, on a balance of probabilities, because he had made such a complaint.  This is set against a background of the Tribunal’s finding of institutional racism as set out in paragraph 57 of these Reasons”

The submissions
29.	The Appellants described the essence of the appeal as being the Employment Tribunal’s failure to understand and then correctly apply the burden of proof provisions found in section 54A(2)(a) of the Race Relations Act 1976 (as amended).  It was accepted that an Employment Tribunal did not always have to adopt a two stage approach to evidential proof in a discrimination case, although, if it did, it should do so correctly and, here, the Employment Tribunal’s approach was flawed.

30.	Whether there was one stage or two, there were fundamental steps, which should be followed.  Firstly, it was necessary to identify clearly what was alleged to be unfavourable treatment (see Sinclair Roche and Temperley v Heard [2004] IRLR 763 at paragraph 10 of the judgment). Secondly it must be proved on a balance of probabilities that the alleged discriminator had treated the employee less favourably not could have done (see Igen v Wong [2005] ICR 93 at paragraphs 25 to 33 of the judgment and on this point in particular see paragraph 31 of the judgment). Thirdly, in order to arrive at the conclusion that there had been less favourable treatment, which, in the absence of a contrary explanation by the alleged discriminator, could have been by reason of race, all the evidence adduced by the parties, including that adduced by the alleged discriminator relative to the actual or hypothetical comparators, needs to be scrutinised (see Madarassy v Nomura International plc [2007] IRLR 246 at paragraph 57 of the judgment).  Fourthly, where there is a hypothetical comparator a conclusion must be reached as to the characteristics of that comparator and how that comparator would have been treated differently to the way in which the employee was treated (see London Borough of Camden v Miah UKEAT/0031/08/LA at paragraphs 49 and 58).

31.	Mr Short QC included as his fifth step a submission as to findings of “unconscious” discrimination but we think of it as more of a freestanding submission as to the correct approach to inferential findings of discrimination and, as the arguments developed, it became clear that it was closely allied to complaints he made about the findings of “institutional racism” upon which the Employment Tribunal relied.  He submitted that where findings of “unconscious” discrimination are made they must be supported by clearly identified primary facts together with the reasoning leading from those facts to the inferential conclusion (see The Governors of Warwick Park School v Hazelhurst [2001] EWCA Civ 2056 at paragraphs 24 and 25 of the judgment of Pill LJ; Bahl v The Law Society [2004] IRLR 799 at paragraph 104 of the judgment; Teva (UK) Ltd v Goubatchev UKEAT/0490/08/DA at paragraph 53 of the judgment).

32.	As to “institutional racism” Mr Short QC relied on paragraphs 38 to 46 of the judgment of this tribunal presided over by the then President, Lindsay J, in the case of Commissioners of Inland Revenue v Morgan [2002] IRLR 776.  A conclusion of “institutional racism” is also an inferential conclusion and the path of reasoning from primary facts to the drawing of the inference needs to be clearly set out.  Moreover, it needs to be very clear how the evidence supports the inductive process of arriving at a view of the characteristics of the body from an investigation relating to the conduct within that body of individuals towards another individual.

33.	Here, without identifying the less favourable treatment or indicating why there was a prima facie case of race discrimination, the Employment Tribunal had cast the burden on Mr McGill to provide (see paragraph 46):

“ … an explanation which would satisfy it, by cogent evidence, on a balance of probabilities that his treatment of the Claimant was in no sense whatsoever on the grounds of his race.”

This was an error.  The Employment Tribunal had, first of all, to establish whether there was less favourable treatment.  When, at paragraph 45 of the judgment, the Employment Tribunal said, that it had:

“… found the following facts from which it could conclude … that the Claimant had been treated less favourably …”

this demonstrated a conflation between “less favourable treatment” and “on the grounds of race”.  The first of the facts, which followed in the same paragraph of the judgment, related not to less favourable treatment but to evidence of “racist overtones”.  The second dealt both with the Respondent’s ethnic background and with his comparative position so it was a mixture of the two concepts.

34.	But what was the less favourable treatment of the Respondent by Mr McGill?  At paragraph 45 the less favourable treatment is identified as being “in respect of his promotion and career development”.  What had Mr McGill done to obstruct that?  Even if it were within his remit to promote the Respondent himself (and there was no evidence that showed it), he could not be promoted because there were no Band 4 vacancies (as the Employment Tribunal accepted at paragraph 47 of the judgment).  Therefore the only other avenue to Grade 4 status, which is what the Respondent emphasised he wanted, was a re-evaluation of his current post.  Although there was evidence that Mr McGill did not expect the post to be re-graded as a result of evaluation, there was no evidence at all that he had been responsible for stopping the job evaluation process or obstructing it.

35.	The Employment Tribunal had fallen into error in the case of Mr McGill at paragraph 45 in believing it had found facts from which it “could” conclude that Mr McGill had treated the Respondent less favourably than he would have treated the real and/or hypothetical comparator.  The errors compressed into that short passage at the start of paragraph 45 were that the Employment Tribunal had not found Mr McGill had treated the Respondent less favourably (and there was no evidence from which such a finding could have been made) nor had the manner of his potential treatment by Mr McGill been explored.  This error is illuminated by the last sentence of paragraph 52 of the judgment (set out in full above at paragraph 21 of this judgment) which is a clear statement that Mr McGill has failed to discharge a burden of showing that he would not have treated the hypothetical comparator less favourably, a burden that should never have been placed upon on him.  It is repeated in the first iteration of paragraph 61, still in comparative terms even though logic dictates it must appear there as a summation of the case on direct race discrimination.  The second paragraph 61 is undoubtedly a finding of race discrimination and what precedes it must be the reasoning leading to that conclusion.

36.	Also the Employment Tribunal had looked at two matters at paragraph 45; an alleged racist remark, which goes to discrimination on racial grounds and not less favourable treatment and the larger proportionate pay increases received by the named comparators.  As to the first, even accepting that it carried the overtones which the Employment Tribunal attributed to it, without any connection to any conduct on the part of Mr McGill, it proved nothing about how he had treated the Respondent.  As to the second, the Employment Tribunal had lost sight of its own finding at paragraph 43 that these were not appropriate comparators because what happened at Band 3 was not comparable to promotion from Band 3 to Band 4, where there were no vacancies, hence the reliance on the hypothetical comparator.  But the focus appears to be on the “real” comparators and where there are both and the “real” are found not to be appropriate there is a trap, identified in the case of London Borough of Camden v Miah of proceeding with the hypothetical comparator but by reference to what happened to persons who were not appropriate comparators.  The real danger, exemplified by the instant case, is of apparently proceeding with a hypothetical comparator but actually relying on the now defunct “real” comparator.

37.	Moreover the Employment Tribunal had also lost sight of two simple mathematical facts; firstly, that those moving up through the system are bound to have proportionately greater and more rapid pay increases than those who remain at the same grade; secondly, that the Respondent was throughout paid at a significantly higher level than any of the others, at least until the last part of the period under consideration.  This was an example of what can happen where an Employment Tribunal does not consider the whole evidential picture.  Appended to the skeleton argument filed on behalf of Mr McGill and TFL were two tables of comparative pay, both of which had been before the Employment Tribunal, one as part of the hearing bundle and one, extracted from the former, used during closing submissions.

38.	There were further errors when the Employment Tribunal asked itself whether the explanation, which it had concluded Mr McGill must give, was satisfactory enough to discharge the burden of proving that the less favourable treatment had not been on the grounds of race.  A summary of the Employment Tribunal’s findings on this part of the case is to be found at paragraph 52 of the judgment (see paragraph 21 of this judgment above).  This rests on “operative sub-conscious racism”, an inferential conclusion, which is expressly said to be drawn from “a reluctance in fulfilling his own promises of advancement” and “a foot dragging delay” in promoting the Respondent when “compared to his proactive advancement of other managers whose abilities were often less than the Claimant’s”.

39.	On what factual findings do either of these rest?  No inference could or should have been drawn that Mr McGill failed to provide clarification; there was simply no evidence that he had ever seen or been apprised of the email asking for it nor was there any evidence that he had ever been contacted by Human Resources to do so.  Nor can they rest on the “many mouths to feed” email because, that expression apart, the email is asking for something to be done, not preventing things from being done.  Then there is the finding that Mr Cowan had progressed more rapidly (see paragraphs 45(ii) and 49 of the judgment) but, if some simple mathematics are done, that is nothing like as significant a point as it appears.  Then there is the preference of two white employees over higher scoring Asian employees (see paragraph 47) said not to have been sufficiently explained.  But that is an unproven and unexplored allegation about the treatment of others.  Then there is the inferential finding that the “other managers” were “often less” able than the Respondent; on what primary facts does that rest?  All in all, this is either a perverse conclusion or an inadequately reasoned one.

40.	As to disposal in respect of Mr McGill, Mr Short QC’s position was that if he succeeded on the issues as to less favourable treatment then we had all the material available to us to substitute a finding that the case against him should be dismissed.  If, however, we concluded that Mr McGill succeeded only on perversity or inadequate reasons, then the matter should be remitted to a differently constituted tribunal for a complete rehearing.

41.	Mr Short QC then turned to TFL’s appeal.  There was, he submitted, a considerable crossover between the case of Mr McGill and TFL.  If the points made about less favourable treatment and Mr McGill were sound then those same points applied to TFL.  The rubric of the last part of the sentence, which comprises paragraph 53, is precisely the same as that relating to Mr McGill in the first sentence of paragraph 45.  Therefore, the Employment Tribunal has fallen into the same error as it did in the case of Mr McGill in believing it had found facts from which it “could” conclude that TFL had treated the Respondent less favourably than it would have treated a real and/or hypothetical comparator.

42.	Paragraph 53 sets out in five sub-paragraphs the facts, from which the conclusion of race discrimination could be reached in the absence of a satisfactory explanation.  The only differential treatment identified is that of stopping the Respondent’s job from being re-evaluated when other job evaluations had proceeded (see paragraph 53(v)) but by itself that was scarcely significant enough to justify the conclusion that the decision was on the grounds of race and none of the other matters set out at paragraph 53 came near to differential treatment let alone a basis from which a conclusion of race discrimination could be drawn.

43.	There was another parallel error; paragraph 60 of the judgment mirrors the same confusion as to comparators as was evident at paragraph 45(ii) and is manifested by the phrase “real and/or hypothetical comparators” in paragraphs 45 and 53.  Whilst Mr Short QC accepted that even if the comparison was not valid some evidence relating to comparators would still be relevant, he did not accept that they could be used interchangeably with the hypothetical comparators.  This created the danger of the Tribunal still using them as comparators, having indicated that they were not and this was a trap into which the Employment Tribunal had fallen at paragraph 60.

44.	That the Employment Tribunal had substituted something like instinct for evidence and analysis was confirmed by paragraph 57 of the judgment.  The relevant part is quoted above at paragraph 22 of this judgment and from that can be extracted the phrase “institutional, unconscious, attitudinal racism, at least in relation to persons of black African ethnicity”.  It is true that the charge is loosely limited by the preceding words “at least in this segment of the … organisation” but it is repeated in the last part of the second paragraph 61 and repeated again at paragraph 67.  So, submitted Mr Short, it is pervasive and he asked – on what evidence does such a sweeping indictment of a significant part of a large public body rest?  His answer was – none that could possibly support it.  Neither Mr McLeod’s nor Mr Henderson’s failure to act nor their lack of equal opportunity training nor the failure to recognise that there was an allegation of race discrimination being raised as part of the grievance could justify such a conclusion.

45.	His critique of the conclusions reached by the Employment Tribunal on the issue as to whether the Respondent had been victimised by TFL was similar.  At paragraph 67 the concept enunciated at paragraph 57 is reiterated in support of the conclusion that TFL had victimised the Respondent by not moving him because he had made a complaint of race discrimination.  The same argument applies; the conclusion is equally unsound.

46.	On disposal Mr Short QC submitted that if TFL succeeded on the misdirection arguments, this Tribunal should dispose of the matter by substituting its own conclusion that on the evidence there was no discrimination and the claims should be dismissed.  Alternatively the matters should be remitted to a differently constituted Tribunal for a compete re-hearing.

47.	Mr Harris submitted that this had been an eight day hearing at which the Employment Tribunal had ample opportunity to reach conclusions about witnesses and to reach an adverse conclusion about the conduct of Mr McGill and TFL.  That the Employment Tribunal was unimpressed by the conduct of either was exemplified by the ruling that documents could not be added to the bundle and a witness could not be called.   The Employment Tribunal had correctly directed itself as to the law and correctly followed that self direction in making its factual findings.  Here the Employment Tribunal had moved directly to the second stage of consideration of evidential proof of race discrimination as was sanctioned by this Tribunal in the case of Laing v Manchester City Council UKEAT/0128/06/DA (see paragraphs 74 and 76).

48.	It was also important to have in mind what had been said by Waite LJ at paragraph 29 of his judgment in the case of Jones v Glamorgan County Council [1997] IRLR 685, namely that where there has been a correct self direction as to law and a conclusion reached, which is open on the evidence, then the fact that some things are said in the judgment, which appear to be at odds with the self direction (the learned judge uses the word “inappropriate”), then those can be ignored unless they clearly “vitiate” the conclusion.  If there are infelicitous passages in the instant judgment, they do not matter because they do not vitiate the conclusion.

49.	He also, quite naturally, makes the point that evidential weight is a matter for the Employment Tribunal.

50.	There were really two issues for the Employment Tribunal to decide.  Firstly, why was the Respondent not re-graded?  This was really a “glass ceiling” case about why Black Africans were not being promoted.  Secondly, why, having raised a grievance, was he not moved to a different workplace?  Neither Mr McGill nor TFL had an answer to either of those questions at the hearing and, submitted Mr Harris, they still did not have an answer at the time this case was heard by us.

51.	In the case of Mr McGill the less favourable treatment had been clearly identified.  Mr McGill had wanted all his managers to be re-evaluated but Mr Henderson only wanted the Respondent’s job to be re-evaluated.  That proposal had been signed off by both men (see paragraph 15).  But there were discussions in the Human Resources Department and the matter was put on hold pending clarification and there was no evidence that any such clarification had ever been provided by Mr McGill or Mr Henderson (see paragraph 16).  The Senior HR Advisor, who the Employment Tribunal noted was a white South African, then said that “this role cannot be evaluated” (paragraph 17).  Moreover the Respondent had been told that he would be fast tracked to promotion (see paragraph 10).  On the other hand, Mr Cowan had received three merit awards, whereas the Respondent had not been given even one and Mr Cowan had been promoted by Mr McGill without taking part in any competition (see paragraph 13).  So, contrary to Mr Short QC’s submissions, there was evidence that Mr McGill could promote without reference to others.

52.	These were all findings of less favourable treatment, which were reflected in the findings at paragraphs 45 to 52 of the judgment, particularly paragraph 52.

53.	Also the judgment should be considered as a whole and passages such as the reference to the halting of the job evaluation in paragraph 60 should not be cut off from the passages at paragraphs 45 and 46 simply because those relate to the shifting of the burden of proof and not to discrimination.

54.	Although Mr Harris accepted that the Employment Tribunal had concluded that Messrs Cowan, Altinok, Kelly and Marsh were not appropriate comparators, the Employment Tribunal were entitled to consider the evidence relating to them and there was nothing erroneous about the use made of it by the Employment Tribunal.  In Chief Constable of West Yorkshire v Vento [2001] IRLR 124 a division of this Tribunal presided over by Lindsay J, had said at paragraph 7 of the judgment that:

“We would readily accept that the treatment of an actual male comparator whose position was wholly akin to Mrs Vento’s in relation to the Mr Value incident was not in evidence.  It followed that the tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable circumstances.  One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases.”

So the Employment Tribunal had been entitled to compare the Respondent’s treatment with Messrs Cowan, Altinok, Kelly and Marsh to construct how the hypothetical comparator might have been treated.

55.	By the same token the evidence about the preference of two white managers over two Asian managers with higher scores, the unsatisfactory response of Mr McGill and the lack of documentary material about the matter (see paragraph 12 of the judgment) was evidence upon which the Employment Tribunal had been entitled to rely.  Also the Employment Tribunal were entitled to take note of the fact that Mr McGill was reluctant about the Respondent’s job being re-evaluated and that the suggestion for re-evaluation came from Mr Henderson.  The Employment Tribunal inferred that Mr McGill had obstructed the process by not providing any clarification and it was entitled to do so; the silence was thunderous.  Any person interested would have chased it up but there was no evidence that either Mr McGill or Mr Henderson had done so and the inference that they were not interested was available to be drawn.  Likewise the Employment Tribunal were entitled to note that whereas Mr McGill had procured merit awards for Mr Cowan he had not done so for the Respondent, whose award had come from Mr Henderson.

56.	In any event, ultimately the Employment Tribunal had resorted to the hypothetical comparator, as it was entitled to do, and such a case is identified in Laing as the most obvious example of a situation where it will be appropriate to move straight to Stage 2 and call for an explanation.  This is what had happened in the instant case and it was justifiable because there clearly was less favourable treatment in the failure to award merit awards, the failure to give him the promotion that had been promised and the halting of his job evaluation.

57.	There was no question of perversity here, submitted Mr Harris.  The Appellant’s arguments came nowhere near clearing the high hurdle for perversity set by Yeboah v Crofton [2002] IRLR 634.

58.	The Employment Tribunal had been entitled to regard the “many mouths to feed” remark as significant and, therefore, had been entitled to place reliance on it.  There was evidence that it carried racist implications; the Appellants’ own witness, Mr McLeod, had said so; and the drawing of inferences is just as much a factual and evidential matter as any other aspect of the material before an Employment Tribunal.  It was just as significant in the context of TFL as it was in the case of Mr McGill because TFL, knowing that the remark was racist, had done nothing about it.

59.	In the context of victimisation Mr Harris submitted that the Employment Tribunal had been entitled to find TFL knew the Respondent had raised a grievance that he was being discriminated against on the grounds of race and equally entitled to conclude that he was not moved because he had raised that grievance.  These were all factual decisions and beyond challenge on appeal.

60.	As to disposal in the event that the Appellants succeeded, it was not appropriate for this Tribunal to decide a discrimination case and the matter should be remitted to the same Employment Tribunal with appropriate directions; to do otherwise would be disproportionate in terms of costs, resources (Employment Tribunal time), equality of arms (the Respondent may well have to represent himself) and an unmeritorious opportunity for the Appellants to escape the consequences, in case management terms, of their own inadequate conduct at the first hearing.

Discussion and conclusions
61.	There were times during the extensive submissions we have just summarised when we wondered whether the whole appeal was beginning to stray into a paper re-hearing of the Respondent’s complaints and the Appellant’s answers to them.  We do not say this as a criticism of the advocates.  Mr Short QC was, of course, submitting that this was a case where we could exercise our powers to reach a different conclusion to that reached by the Employment Tribunal as opposed to remitting the case for re-hearing.  Mr Harris wished to emphasise the soundness of the inferential conclusions.  Inevitably both approaches involved detailed consideration of the evidence.

62.	But we must be careful not to be drawn too far into the factual material.  As Mr Harris reminded us this was a case decided after an eight day hearing, during which the Employment Tribunal examined a lot of evidence and reached inferential conclusions, which he submitted these were open on the evidence and not susceptible to challenge on appeal because matters of fact are for the Employment Tribunal to decide and no matter how seductively any challenge to the inferential conclusions is put, ultimately it is no more than a challenge to the Employment Tribunal’s fact finding role and, as such, impermissible.

63.	We acknowledge the force of that submission and, of course, recognise that full weight must be given to the advantages the Employment Tribunal has by having heard the evidence and seen the witnesses, weighed them up and developed an instinct about the case.  But valuable though instinct may be in any case, and in discrimination cases in particular, it must be balanced by analysis.  We propose therefore to examine the analysis undertaken by the Employment Tribunal.

64.	In any discrimination case the starting point must be less favourable treatment.  This is a comparative exercise and classically it is undertaken by making a comparison between the complainant and a colleague and that approach was adopted in the instant case.  But before that comparison is made it is necessary to identify the less favourable treatment.  The Employment Tribunal identified this at paragraph 1(i) as less favourable treatment “in respect of his career advancement and promotion”, at paragraphs 45 and 53 as less favourable treatment “in respect of his promotion/career development”, at the first iteration of paragraph 61 as less favourable treatment “in respect of his career progression and development” and at paragraph 52, which deals with both the less favourable treatment and the reason for it, as “ … reluctance in fulfilling … promises of advancement, which the Claimant’s performance clearly merited and a foot-dragging delay in actively promoting his advancement towards a Band 4 position when compared to … proactive advancement of other managers whose abilities were often less than the Claimant’s”.

65.	Whilst these are not completely consistently expressed it seems to us reasonable to say that their mean average is less favourable treatment in relation to promotion to Band 4 either by reluctance to promote or deliberate delay in doing so.  What are the facts relating to that allegation of less favourable treatment?  In May 2006 the Respondent, already a Band 3 manager, moved to become Customer Services Manager in the Group Customer Services Department on a promise of “a fast-track development plan for rapid promotion”.  Just over 30 months later he took on additional duties and almost immediately he started to complain of lack of advancement.  He lodged his complaint to the Employment Tribunal just over three and a half years after starting work in the Group Customer Services Department and just over a year after he took on the additional duties.  In this period there were no Band 4 vacancies.  There was a proposal that his combined job (i.e. the original job and the additional duties) be evaluated under the job evaluation scheme but that did not go ahead.

66.	So the logical comparison was between the Respondent and another Band 3 manager seeking promotion to Band 4.  Comparators were put forward but the Employment Tribunal accepted that they were not appropriate.  The alternative was to use a hypothetical comparator and the Employment Tribunal opted to do this.  This was constructed by the Employment Tribunal in elaborate terms at paragraph 44.  Despite its apparent comprehensiveness, on its face it omits an important ingredient, namely occupying a Band 3 position.

67.	Mr Harris suggests the passage in paragraph 7 of Vento referred to above (see paragraph 54) allowed the Employment Tribunal to take account of evidence relating to the inappropriate comparators.  We accept that is so in relation to constructing a hypothetical comparator; that is what Lindsay J is referring to at paragraph 7.  But Employment Tribunal used the evidence about the history of the Band 2 managers and their translation to Band 3 and the speed and frequency of their merit awards to decide both the issue of less favourable treatment and relation to the reason for the less favourable treatment. It was not used, in the construction of the hypothetical comparator; nor could it have been used in that context because it tells us nothing about the characteristics of the hypothetical comparator.  If that evidence is relevant it does not come into the case through the gateway of identifying the characteristics of the hypothetical comparator and the Vento case does not held Mr Harris in the way he suggests.

68.	Having identified the nature of the less favourable treatment and the characteristics of the hypothetical comparator, the next step in the analysis is to make the comparison between the treatment of the complainant and the treatment of the hypothetical comparator.  In the instant case this involved contrasting the degree of reluctance and delay as between the Respondent and the hypothetical comparator.  Mr Harris submitted that the evidence as to the treatment of the inappropriate comparators fitted in at this point; at least one, Mr Cowan, appeared to be receiving support from Mr McGill.

69.	But Mr Short is correct when he points out that none of this evidence relates to promotion from Band 3 to Band 4 and that there was no evidence at all as to how long a delay there might have been in other cases between being promoted from the one to the other.  It is, of course, correct that the Respondent had been told that he would be on a fast track (although omitted from the characteristics described at paragraph 44 we assume the Employment Tribunal had that in mind) but there is no evidence as to what that might mean either in the case of the Respondent or in other cases.  If others made the transition from Band 3 to Band 4 more rapidly than the 3 years that had elapsed between the interview and the Respondent’s complaint that would no doubt be cogent evidence.  In the end, however, the Employment Tribunal accepted that there had been no vacancies at Band 4 in the relevant period and so that route came to a dead end.

70.	The focus then shifted to the job evaluation.  This was looked at by the Employment Tribunal in comparative terms.  At paragraph 54 it is said that the Respondent’s re-evaluation was stopped when others proceeded and at paragraph 58 b) of the judgment it is said that other applications “duly went through the re-evaluation process” and both Ms Page, a member of the Human Resources Department and Ms Guernou, a Band 4 manager in the Group Customer Services Department, are mentioned specifically.

71.	Mr Short submitted that this was a perverse finding.  We cannot accept that; there was evidence about it and it seems to us a conclusion open on that evidence.  On the other hand, we have some difficulty in understanding how it is said to amount to less favourable treatment by Mr McGill.  There was no evidence that he was party to the decision not to proceed with the evaluation of the Respondent’s job but to carry on with re-evaluation in other cases.  We reject Mr Harris’s submission that the silence after the internal Human Resources email asking for clarification is “thunderous”.  There is no evidence that Mr McGill was ever asked for clarification, we do not regard the email, passing between Ms Messina and Ms Page (see paragraph 17 of the judgment) as a primary fact from which it can be inferred that he was asked for clarification and without that step it seems to us even more unsound to conclude that he did not give it, as the Employment Tribunal appear to have done at paragraph 60, albeit in conjunction with Mr Henderson.  The expression used is “their failure” and it seems logical to suggest that must amount to a finding that Mr Henderson failed to provide it.  If so, the obvious comment to make is that there is no more evidence that Mr Henderson did not provide clarification than there is that Mr McGill did not provide any.

72.	Mr Harris submitted that there is nothing wrong in an Employment Tribunal considering together less favourable treatment and whether the reason for the less favourable treatment was on the grounds of race.  He cited Laing in support of that proposition, submitting that such an approach was an obvious one to take in the case of a hypothetical comparator.  We do not doubt the correctness of the approach in Laing to cases where there is less favourable treatment together with an obvious prima facie case of discrimination, such as where the treatment is gender specific (e.g. sexual harassment), although we doubt that it should be regarded as an invariable step in cases of a hypothetical comparator.  But we think it should be emphasised that less favourable treatment must be established before any consideration of the reason for it arise.  Indeed, until less favourable treatment is established, nothing more arises.

73.	The danger of not keeping that firmly in mind is illustrated by the instant case.  We accept Mr Short’s submission that at paragraph 45 the Employment Tribunal conflated less favourable treatment and whether there was a prima facie case that it was on the grounds of race.  The phrase “from which it could conclude” is redolent of precisely the same error identified by the Court of Appeal at paragraph 31 of the judgment in Igen v Wong [2005] ICR 93.

74.	Mr Harris submits that all the evidence is relevant at every stage of the analysis.  We accept that the evidence should not be artificially compartmentalised and have considered whether this is just an unfortunate turn of phrase curable by inserting the words “on the grounds of race” after “treated less favourably” in the third line of paragraph 45.  But that would beg the question as to the conclusion on less favourable treatment and, as Mr Short points out, the sub paragraphs, which follow are concerned with a mixture of material relevant, possibly, to both less favourable treatment and “on the grounds of race”, on the one hand, and relevant only to “on the grounds of race”, on the other.  Moreover, paragraph 46 clearly represents the start of consideration of the new topic of whether the burden of proof has been discharged.

75.	Accordingly, in the case of Mr McGill we have reached the conclusion that the Employment Tribunal fell into error in relation to less favourable treatment.  It reached the conclusion that Mr McGill had delayed or obstructed the Respondent’s promotion from Band 3 to Band 4 whereas he would have supported a hypothetical white candidate when there was no evidence that Mr McGill had been responsible for any obstruction only that he could have been and if he was, then, on the basis of other evidence, that would have been on the grounds of race.  This was stemmed from a conflation between the fact of “less favourable treatment” and the alleged reason for it, namely the Respondent’s ethnic origin, and led to the untenable position that Mr McGill had to prove both that he had not acted on racial grounds and that he had not committed the act.  In our judgment this part of the decision is unsound.

76.	There was, of course, a great deal more criticism of the Employment Tribunal’s conclusions, particularly in relation to whether there was evidence to support the conclusion that if he had treated the Respondent less favourably he had done so on racial grounds.   Expressions such as “many mouths to feed” were raked over both at first instance and before us but the Employment Tribunal were entitled to take note of the fact that a senior manager took the view that it could have a racial connotation.  We were more troubled by whether the merit awards to Mr Cowan or the speed of progress of Mr Cowan and others really meant as much as the Employment Tribunal thought and that the basic statistics had not been understood.  In the end, we concluded that had there been a clear finding of less favourable treatment, the finding that there was prima facie evidence of the treatment being on the grounds of the Respondent’s ethic origin was one with which we should not interfere.  We will return to this when we discuss disposal.

77.	Mr Short QC submitted that the same errors in relation to less favourable treatment in the case of Mr McGill translated across to the direct discrimination case against TFL.  Has the Employment Tribunal fallen into the same error as it did in the case of Mr McGill in believing it had found facts from which it “could” conclude that TFL had treated the Respondent less favourably than it would have treated a real and/or hypothetical comparator?

78.	If the case against TFL depended on TFL having vicarious liability for the acts of Mr McGill that would be so but the case was not put in that way and there is no finding of vicarious liability by the Employment Tribunal.  In our judgment the case against TFL really rests on the stopping of the job evaluation (or re-evaluation, as it is called in the Employment Tribunal’s judgment).

79.	So far as the involvement of Mr Henderson and Mr McLeod in this alleged obstruction is concerned, however, there is an element of translation across from the case of Mr McGill.  We have already said that we see no difference in the evidence relating to Mr Henderson’s involvement than in relation to Mr McGill’s and in our judgment there is no more evidence that Mr McLeod was involved in stopping the job evaluation than there is in the case of the other two.  We do not regard the fact that Mr McGill and Mr Henderson wanted job evaluation to prove that the Respondent’s job was still a Band 3 is a primary fact from which it can be inferred that they stopped the evaluation.  If anything can be inferred (and we doubt that any inference can properly be drawn), it would be the contrary; they would have wanted it to continue.  The “clarification” email is no more a primary fact from which it can be inferred Mr Henderson failed to provide information than it is in the case of Mr McGill.

80.	In any event the evidence is that the re-evaluation was stopped in the Human Resources Department (see paragraph 17 of the judgment).  Those members of this Tribunal with very considerable experience of job evaluation would understand that if there was now a combined job (i.e. the addition of the Oyster Card job to the existing duties) it is unlikely that the job could be re-evaluated on the existing job description and there would need to be a new job description drawn up.  But we mention that only as an observation not as any sort of conclusion and we all accept that the decision not to progress the matter is shrouded in mystery.  We also accept that the Employment Tribunal found that other job evaluations proceeded.  There was, therefore, an evidential basis for a finding of less favourable treatment and, uneasy though we are about it, we think there was enough evidence to support it and we must not interfere with it.

81.	But in our judgment the conclusion that such less favourable treatment was because of the ethnic background of the Respondent rests, at least in part, and, we are inclined to think to a considerable extent, on the finding at paragraph 57 of “institutional, unconscious, attitudinal racism” in “at least this segment of [TFL’s] organisation”.  The latter must mean “at least” both the Group Customer Services Department and that part of the Human Resources Department dealing with Group Customer Services because those are the part of TFL which have been within the scope of the Employment Tribunal’s consideration of the Respondent’s complaints.

82.	Mr McGill, Mr Henderson and Mr McLeod are the only senior managers mentioned in the former context.  All gave evidence.  None had received equal opportunities training; Mr McGill had been the author of the “many mouths to feed” email; Mr Henderson had not reacted to it; Mr McLeod had done nothing about it and had found no evidence of racism when he looked at the matter under the grievance procedure.  Ms Page, Ms Messina, Ms Whitaker and Ms Fearon-McCaulsky are all mentioned in the context of the Human Resources Department.  Of these only Ms Fearon-McCaulsky gave evidence and then only about procedural matters relating to the production of documents and the Respondent’s access to emails and not about the matter of substance (failure to grasp that the Respondent was raising race discrimination in his grievance) in respect of which she was criticised at paragraphs 53(iv) and 57.  The others are not the subject of any individual criticism although there is a general implied criticism that Human Resources played some part in the re-evaluation not proceeding.

83.	The Employment Tribunal add all this up at paragraph 57 in terms already set out but which we repeat here for the convenience of the reader:

“… at least in this segment of the First Respondent’s organisation, what can only be described as institutional, unconscious attitudinal racism, at least in relation to persons of black African ethnicity; a corporate blindness to indications of racist thinking and to the possible implications of a complaint of race discrimination being raised in the context of a wider complaint of unfair or less favourable treatment.”

84.	This finding was based on the failure to appreciate that the Respondent was raising race discrimination as a grievance, the lack of reaction to the “many mouths to feed” email, Mr McGill’s “apparent blindness … to the racist implications of his own email” and the “complete lack of equality training”.  We do not think that this small collection of specific examples all relative to this case can justify the conclusion reached, even if it is confined to “this segment”.  As in Morgan the Employment Tribunal has not defined the term “institutional racism”. The scope of the evidential material here cannot encompass “habitual rules and practices” (see paragraph 46 of Morgan).  In our judgment the evidential material simply cannot bear the weight of the structure erected above it.

85.	Moreover, we accept the argument of Mr Short QC that it needs to be very clear how the evidence supports the inductive process of deriving a conclusion about general corporate attitudes from the actions of specific individuals.  If all that it amounts is a collection of single incidents of limited scope, an inductive conclusion will not be justified.  Here, we think that the matters relied on by the Employment Tribunal are really just particular instances; they amount to no more than the sum total of their parts and reveal no corporate culture.

86.	The Employment Tribunal also rely on the concept as background support for the findings at paragraph 60, which for convenience we set out again:

“60. In the absence of a Band 4 vacancy, job re-evaluation was the only route forward for the Claimant.  The Respondents’ explanations for the halting of this process were not consistent with the evidence before the Tribunal and in the absence of any more cogent explanation, the Tribunal was not satisfied that the Claimant’s race had played no part in this process, particularly in the light of the Tribunal’s finding of the bad faith in which the Claimant’s management had put forward his job re-evaluation request in the first place, their failure to provide the clarification sought by the job evaluation team and Mr McCleod’s own grievance finding that the process was “not entirely clear”.  This must be taken against the background of the far more rapid pace of advancement and promotion (by whatever means) of more junior and less able colleagues than the Claimant, where he alone was of black African ethnicity and the Tribunal’s finding of institutional racism as defined in paragraph 57 of these Reasons.”

and then refer to it again in the last part of the second sentence of the second iteration of paragraph 61, although in the context of apportionment of fault as between Mr McGill and TFL.  There it has become “corporate culture  ... permissive of, if not engendering racism.”

87.	Consequently, we think Mr Short QC’s expression that the concept is “pervasive” is apt.  The question is can the findings against TFL survive, if the support of “institutional racism” is removed.  We think that the finding cannot be regarded as sound.  It is true that it is said to be in the background but we think that there may have been “double counting” here.  The matters relied on as supporting “institutional racism” are also relied on to support the conclusion that TFL has not discharged the burden of providing a non racial explanation for apparently racist behaviour.  The “institutional racism” is then relied on as providing support for that conclusion.  In our judgment it is counting the same material twice; the same material is being used to reach the conclusion and then to support the correctness of having reached that conclusion.  For that reason we regard the finding against TFL of less favourable on the grounds of race as being unsound and the appeal will be allowed on that point as well.

88.	So far as victimisation of the Respondent by TFL is concerned, we understand the challenge by TFL to be to the conclusion that the refusal to relocate was because the Respondent had complained of race discrimination in his email of 2 December 2009.  Specifically the complaint is that the conclusion reached at paragraph 67 is by the last sentence said to be “set against a background of the Tribunal’s finding of institutional racism”.  Mr Short QC submitted that if he succeeded in respect of his complaint as to “institutional racism” in respect of discrimination it followed that he should succeed in this context as well.  We have considerable hesitation about that proposition.  As Mr Harris pointed out there were a number of very specific findings in paragraphs 62 to 66 of the judgment but in the end we have come to the conclusion that the concept must have been regarded by the Employment Tribunal as having some bearing on the conclusion otherwise it would not have been mentioned.  The conclusion is inferential and it is impossible to say that the balance was not tipped by reliance on a factor that had not real independent existence.  On this ground too, we will allow the appeal.

Disposal
89.	When considering disposal we have reminded ourselves as to the factors indentified in Sinclair Roche and Temperley v Heard [2004] IRLR 763 at paragraph 46 of the judgment.  This is now an old case.  It was heard at length.  The Appellants have not succeeded on everything; in particular, we have concluded that if there was less favourable treatment by Mr McGill, then evidence supported the finding that it was on the grounds of race.  Proportionality and the passage of time would favour a remission to the same Tribunal with appropriate directions.  But, on the other hand, there are flaws and the process of deciding only some issues again might be difficult and considerable expense would still be incurred.  We will direct that the case be remitted to a differently constituted Tribunal for a compete re-hearing.  We do so because very strong views appear to have been formed.  We recognise the professionalism of Employment Tribunals but we think that, on balance, it would be better if fresh minds were brought to bear on this case.