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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hussaney v Chester City FC & Anor [2001] UKEAT 203_98_1501 (15 January 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/203_98_1501.html Cite as: [2001] UKEAT 203_98_1501

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APPEARANCES

 

For the Appellant	MR C HAY (Representative)
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE CHARLES:

1. This is an appeal against part of a decision of an Employment Tribunal sitting at Liverpool on 3, 4 and 5 November 1997. The reasons for the decision were sent to the parties on 21 November 1997. We explain below why this appeal has taken so long to come on for hearing.
2. The background facts and the issues that arise on this appeal are helpfully set out in the judgment delivered by his Honour Judge Peter Clark when this appeal came before this Tribunal by way of preliminary hearing. That judgment contains the following paragraphs:

"The Appellant was a member of the First Respondent football club's youth squad from June 1995 until June 1997. He is of mixed race. The Second Respondent, Mr Kevin Ratcliffe was the club's manager.

On 29 January 1997, prior to a reserve team match, the Appellant was required to change the studs in the Second Respondent's boots. He fitted them incorrectly. The Second Respondent was heard to say "Where's James, the black cunt" by two of the Appellant's friends, who reported what had been said to him.

The Applicant telephoned his father, who came to the ground to remonstrate with the Second Respondent. He was headed off by Mr Fogg, the youth team coach. Later that evening the Second Respondent offered what he claimed was an apology. He did not deny using the words overheard by the two young footballers.

As a result of a telephone conversation between the Applicant's mother and the club Chairman, Mr Guterman, a meeting was held on 4 February 1997. On that occasion the Second Respondent was genuinely apologetic. It was agreed that the club would issue a formal apology to the Appellant and that the Second Respondent would receive a disciplinary warning. At the meeting Mr Fogg was hostile to the Appellant's mother, saying that the Appellant had a bad attitude. The Tribunal observed that no two witnesses called on behalf of the Respondents could agree as to what that meant.

Subsequently, the Appellant never received the promised apology. The Second Respondent was sent a disciplinary letter, which the Tribunal found was too mild in tone; said nothing about the likely consequences of repetition and was not the letter of an employer who had formed the view that the manager had seriously misconducted himself.

On 21 March 1997 the Appellant was informed by the Club that he was being released; he would not be offered a professional contract. Of the nine players in the youth team only two were released, the Appellant and the goalkeeper, Paul Smith.

On these facts the Tribunal had to decide two issues; First, was the Second Respondent, and through him the 1st Respondent, guilty of unlawful racial discrimination by reason of the racial abuse which he uttered. The Tribunal held that that part of the Appellant's case was made out, and they awarded him £2,500 compensation for injury to feelings. There is no appeal or proposed cross-appeal against that finding.

Secondly, the Appellant contended that he had not been offered a professional contract because he had complained about the Second Respondent's racial insult; in other words, a complaint of victimisation under Section 2 of the Race Relations Act 1976. The Tribunal rejected that part of the claim and it is against that finding that this appeal is brought."

3. That preliminary hearing took place on 23 March 1998 and this appeal was listed for hearing before this Tribunal on 4 March 1999.
4. The day before that hearing Solicitors acting for the administrators of the First Respondent (Chester City Football Club) wrote to this Tribunal stating that they had just been made aware of the appeal. We accept that this was so, but point out that both the Respondents and Solicitors who had previously acted for them had been very well aware of the existence of this appeal for some time and had not informed this Tribunal of the Administration Order made in respect of the First Respondent. This Administration Order was made on 27 October 1998.
5. Section 10(1)(c) of the Insolvency Act 1986 provides that after the presentation of the petition for an Administration Order:

"No other proceedings … may be commenced or continued … against the company or its property except with leave of the Court."

6. The consequence of this last minute notification of the existence of the Administration Order was that when this appeal came on for hearing on 4 March 1999, this Tribunal ordered that "Such part of the Appeal as relates to the First Respondent be stayed" and "Such part of the Appeal as relates to the Second Respondent do be listed for a full hearing at a date convenient to the parties".
7. The correspondence before us shows that after that Order was made by this Tribunal the Appellant hoped to be able to proceed against both Respondents, either with the consent of the Administrators or the permission of the Court. Accordingly the Appellant sought a deferral of the listing. This was granted. But on 12 June 2000 the Appellant's advisers wrote to this Tribunal informing us that the Appellant wished to proceed against the Second Respondent (Mr Ratcliffe) alone.
8. That letter stated as follows:

"We are unable to proceed with the appeal in relation to the First Respondent at present because they are still the subject of an Administration Order and the Administrator has refused to give his consent for the Appellant's appeal to proceed. Furthermore, there is a dispute as to whether or not the Appellant is bound by a voluntary arrangement agreed by the First Respondent's creditors.

The Second Respondent is not the subject of an Administration Order and the Appellant is anxious to have his appeal heard. We therefore respectfully request that the appeal in relation to the Second Respondent be listed for hearing at the earliest possible opportunity."

9. Today we were told that the Appellant had not sought permission from the Court to proceed with his appeal against the First Respondent because of the costs and risks involved in such contested proceedings.
10. The present position is therefore that the appeal is stayed as against the First Respondent (Chester City FC) and is proceeding against the Second Respondent (Mr Ratcliffe). At the relevant time the Second Respondent was the Manager of Chester City FC and in his cross-examination before the Employment Tribunal accepted that the decision whether the Appellant would be offered a professional contract was his at the end of the day.

The most relevant parts of the Extended Reasons

11. These are paragraphs 2, 3 and 4. They are in the following terms:

"2(a) Before us, the applicant was represented by Ms S Erwin of the Merseyside Racial Equality Council. He gave evidence on his own behalf and called as witnesses: Mr Paul Roger Smith, former colleague; Mr Newton Clive Hussaney, his father; Mrs Tracey Joanne Hussaney, his mother; and Mr Robin Gibson, neighbour.

(b) The respondents were represented by Mr M Guterman, Chairman. There appeared as witnesses on their behalf: Mr Guterman; Mr Kevin Ratcliffe, Manager; the second respondent; Mr Gary Shelton, Assistant Manager; Mr Spencer Randall Wheelan, player; Mr David Fogg, Youth Team Coach; and Mr William Wingrove, Director and Chief Executive.

(c) These documents were put in:-

A1 - bundle

A2 - reference for Mr Paul Smith

A3 - analysis of log book

(d) Each witness except for Mr Paul Smith gave evidence-in-chief by reading a prepared written statement, amplified as appropriate ex tempore. In addition, we had before us a statement from Mr Don Page, a former player.

3 Here are our findings of fact:-

(a) The respondents are a football club whose first team plays in the Third Division of the Football League. They also field a reserve team and a youth team. The applicant who is now 18, was in their youth squad, coached by Mr Fogg, from June 1995 until June 1997. He played at outside right.

(b) Like others in the youth squad, the applicant played several games for the reserves. There he came under the scrutiny of Mr Shelton, who managed the reserves. He judged the applicant to lack the technical skills needed to make a professional footballer, his only asset being his speed. Mr Fogg agreed: he thought that the applicant, while a good athlete, lacked technical skill and he perceived that the young man's tension in the big games, those for the reserves, badly affected his play. The second respondent, too, saw the applicant play and train, and he agreed with the assessment of him made by Mr Shelton and Mr Fogg.

(c) Thus the applicant did not progress as he might have hoped and during 1996, he was no doubt much criticised. In football, we were told, criticism is commonly expressed in bad language; most people do not mind, it is the way of the game. The applicant became demoralised and unhappy; his parents were worried about him.

(d) On 29 January 1997, a match was due to be played at Chester between Chester Reserves and Oldham Athletic Reserves. The second respondent was to play for Chester. The applicant as part of his duties had to change the studs in the second respondent's boots. He was told exactly what to do: different length studs had to be fitted in the soles and in the heels. He fitted them wrongly. The second respondent was, as usual, 'psyched up' for the game. The condition of his boots just before the start made him very angry. He said, 'Where's James, the black cunt?' James was the applicant. He was not present but 2 of his friends were. The second respondent's words were quickly reported to him.

(e) During the game, Mr Hussaney senior, in response to a telephone call from his son, came to the ground to remonstrate with the second respondent. Mr Fogg headed him off from an angry confrontation. Later the same evening, the second respondent offered what was later claimed to have been an apology. But it did not seem like one to the applicant. The second respondent was smiling and he tried to minimise what he had said. But he did not deny, indeed he has always agreed, that he used the words attributed to him by the applicant.

(f) On a later date, Mrs Hussaney spoke on the telephone to Mr Guterman. Their conversation was neither pleasant nor fruitful except that a meeting at the club was arranged. On 4 February 1997, she attended the meeting accompanied by a neighbour, Mr Robin Gibson. At the meeting, too, were Mr Guterman, the second respondent, and Mr Fogg. By that time, the second respondent was genuinely apologetic. Various topics were covered. Among the matters agreed were that the respondents should issue a formal apology to the applicant and that the second respondent should receive a disciplinary warning. Mr Fogg was very hostile to Mrs Hussaney. He attacked the applicant for having a bad attitude. Mr Guterman supported this allegation of bad attitude. When we examined it, we found that no two people could agree what they meant by the reference to the young man's attitude. Certainly we heard nothing to suggest that there was anything wrong with it.

(g) At the meeting, it was agreed that the second respondent would give the applicant an apology and that he would receive a disciplinary warning. He never did receive the apology. Mr Wingrove sent the second respondent the letter at page 43 of A1.

(h) Shortly afterwards, the respondents wrote to the applicant to tell him that he would not be offered a professional contract with them (page 41 of A1). They made the decision to release him after the second respondent, Mr Fogg and Mr Shelton had considered his merits as a player. Mr Guterman wondered whether they should not give him year's contract as a placatory gesture, but the others insisted that he was not a good enough player to remain on their books and would not really be helped by being kept on contrary to his merit.

4. (a) The abusive words

In abusing the applicant, was the second respondent, and, as his employers, were the first respondents, discriminating against him on the ground of his race? To be abused is without question a detriment. The particular words used by the second respondent were racially specific, they were an express, undisguised racial insult. It was clear that uttering them was an act of race discrimination.

(b) The failure to offer a contract

(i) In releasing the applicant, or failing to offer him a contract, were the respondents doing so because he had complained about the racial insult? There was much to be said in favour of the contention that we might from the circumstances infer as much. The letter of release was sent soon after the complaint. The baseless accusations of bad attitude were a response to the complaint.

(ii) But, considering and balancing everything, we decided that the applicant's release was decided purely on footballing grounds. Mr Shelton was not personally involved in the incident leading to the complaint, though he no doubt identified with the club. His assessment of the applicant did not justify the offer of a contract. Mr Fogg and the second respondent are very experienced judges of skill. The opinions about the applicant were unanimous. They were those of people who watch a player as he performs, not those of people necessarily keep impeccable records on paper; yet Mr Fogg's records did indicate that in technical aspects of his play, the applicant did not improve from 'fair' week after week. We accepted that the respondents carefully assessed the applicant and arrived at a conclusion untainted by racial grounds, and justified by knowledgeable observation."

The Race Relations Act 1976 (the RRA)

12. The most relevant sections for the purposes of this case are section 1(1)(a), section 2, section 4 (1) and (2), section 32, section 33 and section 65(1) and (2).

Section 2 provides that:

(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

Section 4 (1) and (2) provide that:

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee: -

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment.

Section 33 provides:

"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal.

(3) A person does not under this section knowingly aid another to do an unlawful act if -

(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful; and

(b) it is reasonable for him to rely on the statement.

Section 65(1) and (2) provide that:

"(1) With a view to helping a person ('the person aggrieved') who considers he may have been discriminated against in contravention of this Act to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Secretary of State shall by order prescribe –

(a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and

(b) forms by which the respondent may if he so wishes reply to any questions.

(2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not) -

(a) the question, and any reply by the respondent (whether in accordance with such an order or not) shall, subject to the following provisions of this section, be admissible as evidence in the proceedings;

(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."

13. As is apparent from its terms, it is section 33 RRA that the Appellant relies on in respect of his claim against the Second Respondent concerning the decision not to offer him a professional contract.

The representation of the parties

14. The Appellant has been represented before us by Mr Courtney Hay of the Northern Complainant Aid Fund. He has provided us with a helpful Skeleton Argument. Also, during the hearing he presented the arguments on behalf of the Appellant clearly and fairly. We repeat our thanks to him for his assistance.
15. We were notified today that Mr Ratcliffe did not intend to appear or be represented on this appeal.

The basis of the claim that is the subject of this appeal

16. It was confirmed to us today that this claim was put and argued as a claim of discrimination by way of victimisation under section 2 RRA, the protected act being the fact that the Appellant had made an allegation of racial abuse.
17. At the time of the hearing before the Employment Tribunal the case of Nagarajan v London Regional Transport had not been decided by either the Court of Appeal or the House of Lords. The decision of those two courts are reported in respectively [1998] IRLR 73 and [1999] ICR 877. At that time the case of Aziz v Trinity Street Taxis Ltd [1988] IRLR 211 had been decided and the Appellant's representative submitted to us that the Aziz case identified the approach under the RRA. In paragraph 59 of the judgment in the Aziz case, the Court of Appeal hold (as did the Court of Appeal in the Nagarajan case) that an Applicant had to show conscious motivation to succeed on a claim for discrimination by way of victimisation. The House of Lords have now held in the Nagarajan case that there can be conscious or subconscious motivation.
18. At the time that the case was decided by the Employment Tribunal in accordance with the decision of the Court of Appeal in the Aziz case (and the later decision of the Court of Appeal in the Nagarajan case) the statutory question was: "Has a person consciously treated the complainant less favourably than others because (or by reason of the fact that) the complainant has done a protected act?
19. As was explained in Zafar v Glasgow City Council [1998] IRLR 36, that single statutory question relating to a claim of discrimination by way of victimisation can conveniently be divided up into its constituent parts. Often it is necessary or important to do this for the purposes of analysis and a proper explanation of the reasons why a claim for discrimination by way of victimisation has succeeded or failed.
20. Here, there is and was no dispute that the Appellant was the author of a protected act, namely he had made a complaint of racial discrimination. The constituent parts of the statutory question are therefore (a) less favourable treatment, and (b) causation.
21. It was submitted on behalf of the Appellant that he was less favourably treated when a comparison is made with the seven members of the Youth Squad, all white, who were retained under professional contracts and it is apparent that the Employment Tribunal accepted this. We agree and naturally there is no appeal by Mr Hussaney against that part of their decision.
22. It follows that the issue concerning the claim for discrimination by way of victimisation on which the Employment Tribunal found against Mr Hussaney and which is the subject matter of this appeal was the issue of causation.
23. Before the Employment Tribunal the issue of causation was put by reference to the law as it was then understood to be and therefore the case was argued on the basis of a need to show conscious motivation. On this appeal we have approached the question whether the Employment Tribunal erred in law in respect of the issue of causation on the basis that as is stated in the Aziz case a claimant had to show conscious motivation because this case was binding on the Employment Tribunal at the time they decided the case. Indeed (in our judgment correctly) it was not part of the arguments advanced on behalf of the Appellant that his appeal should succeed because the House of Lords have held in the Nagarajan case that the relevant motivation can be subconscious. However on a remission an Employment Tribunal would have to consider the issue of causation on the basis of the decision of the House of Lords in the Nagarajan case which is declaratory of the effect of the RRA and thus of the law.

The appeal

24. The primary relief sought by the Appellant is that we should allow the appeal and ourselves substitute a finding that the Second Respondent is liable for discrimination by way of victimisation in respect of the failure of the First Respondent to offer the Appellant a professional contract. Alternatively, the Appellant invited us to allow this appeal and remit the claim for discrimination by way of victimisation against the Second Respondent to a newly constituted Employment Tribunal. The main basis of that argument was that the Employment Tribunal have failed to comply with their statutory duty to provide full reasons and we were referred to the well known decision in Meek v City of Birmingham District Council [1987] IRLR 250 in respect of the extent of that obligation.
25. The matters relied on by the Appellant to support both heads of relief are effectively the same and they are set out in paragraphs 1 and 2 of the Skeleton Argument put in on behalf of the Appellant. These paragraphs are in the following terms:

"1 The Employment Tribunal erred in law by failing to apply the principles and guidance set out in Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 CA, and Meek v City of Birmingham District Council [1987] IRLR 250 CA in relation to the Applicant's claim of victimisation.

In so doing the Employment Tribunal misdirected themselves.

2 At paragraph 4 of their decision, having reached a finding that the respondents unlawfully discriminated against the Appellant in respect of the second Respondent's 'express, undisguised racial insult', the Tribunal made the following finding in relation to 'the failure to offer a contract'.

'(b) The failure to offer a contract

(i) In releasing the applicant, or failing to offer him a contract, were the respondents doing so because he had complained about the racial insult? There was much to be said in favour of the contention that we might from the circumstances infer as much. The letter of release was sent soon after the complaint. The baseless accusations of bad attitude were a response to the complaint.

(ii) But, considering and balancing everything, we decided that the applicant's release was decided purely on footballing grounds. Mr Shelton was not personally involved in the incident leading to the complaint, though he no doubt identified with the club. His assessment of the applicant did not justify the offer of a contract. Mr Fogg and the second respondent are very experienced judges of skill. The opinions about the applicant were unanimous. They were those of people who watch a player as he performs, not those of people necessarily keep impeccable records on paper; yet Mr Fogg's records did indicate that in technical aspects of his play, the applicant did not improve from 'fair' week after week. We accepted that the respondents carefully assessed the applicant and arrived at a conclusion untainted by racial grounds, and justified by knowledgeable observation.'

2.1 Section 65(2)(b) of the 1976 Act specifically directs Employment Tribunals to the potentiality for drawing adverse inferences, including an inference of unlawful discrimination, where the respondent's reply to a statutory questionnaire has been 'evasive or equivocal'.

2.1.1 In the present case the Second Respondent (who was found to have racially abused the Appellant) gave such a reply in relation to a matter which was central to the Appellant's claim of unlawful victimisation.

2.1.2 In his RR65 Questionnaire the Appellant asked the Second Respondent to state the reasons why he was 'released from the team'. (page 42)

In reply, the Second Respondent stated that the Appellant was released because he 'lacked the requisite skills and mental strength to perform at a consistently high level at the standard required by members of the Club's first team squad'. (page 44)

2.1.3 The Appellant also asked the Second Respondent to state 'whether anyone else was released and the reasons why'. (page 42)

In his reply the Second Respondent indicated that a white trainee by the name of Paul Smith was released for the same 'reasons'. (page 44)

2.1.4 Paul Smith gave unchallenged evidence to the Tribunal that the Respondent's sole reason for not offering him a contract was that he was too small (physically) for his position as goalkeeper. (page 39)

In his evidence to the Tribunal Paul Smith also produced a letter from the Respondents confirming that it was 'only his size and strength' that caused him to be released. (page 46)

2.1.5 It is submitted that the Tribunal failed to make findings of fact in relation to the Second Respondent's reply to the statutory questionnaire and, as a consequence, failed to direct its mind to the potentiality for drawing an adverse inference from that reply. The point in question was central to the issue of comparison of treatment.

2.1.6 The significance of this error on the part of the Tribunal cannot be overstated, bearing in mind

(a) the Tribunal's finding that the Second Respondent had already discriminated against the Appellant on racial grounds;

(b) their finding at paragraph 3(g) of the Decision that the Appellant did not receive an apology from the Second Respondent, although it had been agreed that the Second Respondent would provide the Appellant with that remedy; (page 9)

(c) the Second Respondent's evidence to the Tribunal that it was his 'decision at the end of the day' as to whether the Appellant was offered a contract or not. (page 39)

2.2 At paragraph 3(h) of their Decision the Tribunal states that the Appellant was released 'after the second respondent', Mr Fogg and Mr Shelton had considered his merits as a player'. (page 9)

2.2.1 In relation to Mr Shelton, at paragraph 4(b)(ii) of the Decision, the Tribunal found that although he 'was not personally involved in the incident leading to the complaint [i.e. the racial abuse] .. he no doubt identified with the club'.

2.2.2 In relation to Mr Fogg, the Tribunal made the following significant finding at paragraphs 3(f) of their Decision:

'… Mr Fogg was very hostile to Mrs Hussaney. He attacked the applicant for having a bad attitude. Mr Guterman supported this allegation of bad attitude. When we examined it, we found that no two people could agree what they meant by the reference to the young man's attitude. Certainly we heard nothing to suggest that there was anything wrong with it …' (page 9)

Furthermore, at paragraph 4(b)(i) of the Decision, the Tribunal made the following important find:

' … The baseless accusations of bad attitude were a response to the complaint.' (page 10)

It is submitted that taken together these two findings establish a clear causal connection between the 'protected act' done by the Appellant (his complaint in respect of the Second Respondent's racial abuse) and Mr Fogg's unfavourable treatment of the Appellant thereafter.

2.3 The Tribunal also ignored the evidence of Mrs Tracy Hussaney that the Respondent told her that if she complained to the Professional Footballers Association (PFA) about the Second Respondent's racial insult ' … it could ruin James' [the Appellant's] career.' (page 50, paragraph 12)

They also ignored similar evidence given by Mr Newton Hussaney. (page 47-48, paragraph 11)

2.3.1 The Tribunal also failed to consider evidence that a copy of the 'disciplinary letter' referred to at paragraph 5(b) of the Decision (page 10) was sent to the Appellant in the same envelope as the letter informing him that he would not be offered a contract. (page 52, paragraph 27)

2.4 The Tribunal failed to consider the possibility of mixed motives in relation to the Respondent's failure to offer the Appellant a contract."

The First Head of Relief Sought

26. The approach of this tribunal to the question whether or not we can decide a case ourselves rather than remit has recently been confirmed by the Court of Appeal in Kapadia v London Borough of Lambeth [2000] IRLR 699, (see in particular paragraphs 18 and 19 of the judgment of Schiemann LJ).
27. Although we see force in the points made on behalf of the Appellant on the issue of causation in our judgment this is not a case in which it is open to us to determine that issue and thus the claim ourselves because it is apparent (for example from the finding in the last sentence of paragraph 3(h) of the Extended Reasons) that (i) it was open to the Employment Tribunal to reach the conclusion that they did on causation and thus on the claim for discrimination by way of victimisation, and (ii) it is not possible for us to conclude that any Employment Tribunal properly directing themselves and having regard to the points made on behalf of the Appellant would conclude that the Appellant was the victim of discrimination by way of victimisation.

The Second Head of Relief Sought

28. It is well established that this Tribunal is to read Extended Reasons benevolently and not to approach them with a fine tooth comb (see for example Lindsay v Alliance & Leicester Plc (EAT/1317/98) at paragraphs 29 to 50 of the judgment).
29. It follows from that approach and the fact that the Employment Tribunal is the "fact finding Tribunal" that this Tribunal is (and should be) reluctant to allow an appeal on the basis that an Employment Tribunal has failed to provide proper reasons for its decision on a factual, or mainly factual, issue when we accept (as here) that the decision they have reached is one that was open to them on the evidence they heard.
30. Further in this case an important point was an assessment by the Employment Tribunal of the truthfulness of the witnesses involved in the decision making process.
31. It follows from the points made in paragraphs 28 to 30 above that there is an argument that in this case the Appellant knows from paragraph 4 (b)(i) and (ii) why his claim for discrimination by way of victimisation failed because in round terms those two paragraphs can be said to recognise that his case had strength or points in its favour but on the central issue of causation the Employment Tribunal found the witnesses who made the decision to be truthful.
32. We do not accept that argument and notwithstanding the points made in paragraphs 28 to 30 hereof we are sorry to have to record that, in our judgment, having regard to the issues in this case and the points made (here and below) by the Appellant the generalised approach taken by the Employment Tribunal in paragraph 4(b)(i) and (ii) of the Extended Reasons falls well short of compliance with their duty to provide reasons for their decision.
33. In our judgment the points made by the Appellant in paragraphs 2.1 to 2.4 of the skeleton argument put in on behalf of the Appellant and in particular those in 2.1 and 2.2 are not points that can properly be dealt with in the general way in which they are arguably covered by the second sentence of paragraph 4(b)(i) of the Extended Reasons, albeit that they are not all mentioned in the remainder thereof. As is perhaps recognised by that sub-paragraph of the Extended Reasons they are powerful points in favour of the Appellant's case on causation and generally. In our judgment if, notwithstanding those points, an Employment Tribunal concludes that the Appellant's case fails (as this Employment Tribunal did) it is incumbent upon them to give reasons for that decision specifically directed to those points and thus, for example, (i) the answer to the questionnaire, and (ii) how the matters raised in respect of one of the decision makers (Mr Fogg) in paragraph 2.2 of the skeleton argument were taken into account. This is not done in paragraph 4(b)(ii) of the Extended Reasons.
34. Further, in our judgment, given the acceptance by the second Respondent that the decision whether the Appellant would be offered a professional contract was his at the end of the day, the involvement of the second Respondent in the successful claim for direct racial discrimination and the position reached concerning the second Respondent's apology and disciplinary warning the Extended Reasons should have expressly included the reasoning of the Employment Tribunal as to the motivation of the second Respondent. In our judgment this is not done by saying that he (and Mr Fogg) were very experienced judges of skill.

Conclusion

35. For the reasons given in our judgment in respect of the dismissal of the Appellant's claim for discrimination by way of victimisation the Employment Tribunal have erred in law by failing to provide proper and adequate reasons for their decision.
36. Accordingly we allow the appeal and remit the Appellant's claim for discrimination by way of victimisation against the second Respondent based on the failure of the first Respondent to offer the Appellant a professional contract to a differently constituted Employment Tribunal.
37. As we see it the only live issue on that claim relates to causation but in our judgment the appropriate course for us to adopt is to remit the whole claim and thus every aspect of it to a differently constituted Employment Tribunal.