NHS Trust Development Authority (NHS TDA) v Saiger & Ors (Practice and Procedure) [2017] UKEAT 0167_15

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> NHS Trust Development Authority (NHS TDA) v Saiger & Ors (Practice and Procedure) [2017] UKEAT 0167_15_1707 (17 July 2017) URL: http://www.bailii.org/uk/cases/UKEAT/2017/0167_15_1707.html Cite as: [2018] ICR 297, [2017] UKEAT 167_15_1707, [2017] UKEAT 0167_15_1707

HIS HONOUR JUDGE HAND QC

Introduction

1. This is a Judgment in relation to two appeals and a cross-appeal from the Judgment and Written Reasons of an Employment Tribunal (“ET”) comprising Employment Judge Hargrove, Ms Simpkin and Ms Winship sitting at Newcastle upon Tyne (as the preamble to the Judgment shows) over 12 days in September, October and December 2014 and January 2015 (one reading day, seven hearing days and four days deliberation, although it is possible that there were 13 days and 31 October 2014 has been omitted from the record), the Decision having been sent to the parties on 30 January 2015 (“the Reasons”). Also of relevance to the appeals and cross-appeal is the Reconsideration Judgment of the same Employment Tribunal sent to the parties on 8 April 2015 (“the Reconsideration Reasons”).

2. The ET concluded that Dr Saiger, who was the Claimant below, the First Respondent both in the appeal UKEAT/0167/15/LA and in appeal UKEAT/0276/15/LA, and also the Cross-Appellant, and who I will refer to from now on as “the Claimant”, had been victimised contrary to the Equality Act 2010 (“EqA”) by all the other parties. But the ET also concluded that whilst there was a 50% chance of her remaining on the “long list” for appointment if she had not been victimised, she would neither have been short listed nor appointed and that aspect of the decision was affirmed by the ET after a reconsideration of it at the request of the Claimant. She has been represented at the hearing of the appeals and cross-appeal by Mr Powell of counsel, who did not appear below. I have not found this an easy case. It is factually dense, many authorities were referred to (and others have been considered in this Judgment) and the argument took three days, which is not surprising because the case bristles with difficulty. This provides a partial explanation as to why the preparation of this Judgment has been long delayed. I can only offer my sincerest apologies to the parties for any inconvenience and distress caused by this delay.

3. The case concerned the appointment process relating to the post of Director of Nursing at North Cumbria University NHS Trust (“the Trust”), which is the Second Respondent in UKEAT/0167/15/LA and the Appellant in UKEAT/0276/15/LA. It has been represented at the hearing of the appeals and cross-appeal by Mr Sweeney of counsel, who did not appear below, leading Ms Jeram of counsel, who did. Such appointments were at the time overseen by the NHS Trust Development Authority (“TDA”), which is the Appellant in UKEAT/0167/15/LA and the Second Respondent in UKEAT/0276/15/LA. It has been represented at the hearing of the appeals and cross-appeal by Mr Reade QC, who did not appear below, leading Mr Sugarman of counsel, who did. What might be termed the mechanics of the appointment process was carried out by IRG Advisors LLP trading as Odgers Berndtson (“Odgers”) which was represented by Mr Massarella of counsel, as it was below.

The Period up to 20 December 2013

4. The Claimant had been dismissed by the Trust from a position as Assistant Director of Nursing on 1 May 2008 after nearly three years in that post. Subsequently she succeeded in proceedings against the Trust both on the grounds of direct race discrimination and unfair dismissal and was awarded a significant sum of money by way of compensation. After her success at first instance there was an appeal, the result of which was that the case was remitted for further consideration by the Employment Tribunal. At that point a compromise was reached, the exact terms of which were confidential. The Claimant has said that subsequently she experienced great difficulties in finding any equivalent permanent employment in the NHS.

5. The Trust itself also had difficulties in the succeeding years. It failed to achieve “Foundation Trust” status, there were changes at senior management level and in 2013 it was placed into “special measures”. As a result, it was being monitored by the TDA and was obliged to have an “official partner and buddy organisation”, which was the geographically adjacent Northumbria Healthcare NHS Foundation Trust (“Northumbria”).

6. Under these arrangements Mr Peter Blythin, the TDA’s Director of Nursing, had a role in decisions about appointment, although the extent of his involvement was contentious (see paragraph 8.6 of the Reasons). The ET found that the proposed appointment of an Executive Director of Nursing was likely to be “a challenging exercise” because the Trust was in special measures and a merger with Northumbria was anticipated (see paragraph 8.7 of the Reasons). There was then no senior manager in the HR Department at the Trust and so, when it was necessary to consider the appointment of an Executive Director of Nursing, the Trust’s new Chief Executive, Ms Ann Farrar, had to liaise with Ms Ann Stringer, who was the HR Director of Northumbria and seems thereafter also to have acted in an HR capacity on behalf of the Trust. She decided that Odgers should be appointed to assist in the recruitment process. The ET found that Mr Blythin, whether he had been consulted by Ms Stringer about the appointment of Odgers or not, subsequently did “endorse” the appointment of Odgers (see paragraph 8.8 of the Reasons).

7. By November 2013 the post had been advertised on the NHS website. The essential criteria for short listing included “Experience”, which was said to amount to “a minimum of 3 years experience in a director or equivalent position in a large complex organisational environment”. The Claimant downloaded the necessary application forms from the website and completed and submitted them.

8. Subsequently the closing date was extended to 16 December 2013 and Odgers produced an application pack, which included the forms available for downloading from the website. On 5 December 2013 Odgers offered candidates who had already submitted an application the opportunity to resubmit using the Odgers pack. The Claimant declined the offer. During the course of a telephone conversation of that date between Ms Laura Spurgin of Odgers and the Claimant there was some discussion about her previous employment by the Trust. Ms Spurgin then spoke to a colleague, Ms Angela McDermottroe, who told her that she recollected the Claimant had left “under difficult circumstances”, had “taken the Trust to an Employment Tribunal” and that the background needed to be checked (see paragraph 8.16 of the Reasons).

9. By 13 December 2013, when Ms Spurgin sent an update to Ms Stringer of Northumbria, it seems that there was a list of current candidates and of other potential candidates who Mr Blythin of TDA might telephone to discuss the post with. Exactly who was on these lists may have varied as between that date and 17 December 2013 (see paragraphs 8.18 and 8.19 of the Reasons). On 19 December 2013 Ms Spurgin and Mr Blythin had a telephone conversation. At page 580 of the Appeal Bundle, there is a note. The ET and described it as a “vital document”.

10. One reason for that description was it recorded the names of four candidates the ET concluded “Odgers were intending to recommend for preliminary interview”, one of whom was the Claimant. The second reason was the ET found the note disclosed what were described by the ET as “derogatory remarks” about the Claimant’s history. These were that the Claimant had (see paragraph 8.20 of the Reasons):

“Not had substantive role.

Was sacked from ------ 2008.

Sacked from Laing Bar[1] (sic) PCT industrial tribunal.

Did the same at Cumbria.”

“Serena Saiger - was dismissed from the Trust in May 2008.

Sacked from general health group December after two weeks - unfair dismissal claim rejected”

Although the above is not a totally accurate reproduction in terms of layout or spelling of the original, as it appears at pages 580 and 581 of the Appeal Bundle, the controversial aspect of it is as to whether that was a note of the terms of the telephone call itself or a record of research done in an Internet search via Google after the telephone conversation. Ultimately, the ET accepted that it was the latter (see below). Also on that day Ms Spurgin sent an e-mail to Mr Blythin in which she identified the six existing applicants and four others who either were intending to speak to Mr Blythin or might benefit from a conversation with him (see page 578 of the Appeal Bundle).

20 December 2013

11. An internal note of a telephone conversation between Ms Spurgin and a colleague at Odgers on 20 December 2013 was transcribed at paragraph 8.21 of the Reasons as follows:

“Decision made -

Gail spoken to Peter will (call) to discuss”

“Add her to long list report.

Ping it over to them -

- intended, (DM, (AC) (GN) DR first week in Jan will get - ”

The ET found that Mr Blythin had spoken to the candidate GN, a Ms Gail Naylor, “early on 20 December [2013]” (see paragraph 8.22 of the Reasons). This refers to an e-mail from Mr Blythin to Ms Spurgin sent at 9.01 hours in which he says “Just spoken to [GN]. Will update you later”. At 11.37 hours on 20 December 2013 Ms Spurgin sent an e-mail to Ms Stringer of Northumbria with the subject matter “Longlist report” (see page 584 of the Appeal Bundle). The long list report was attached and described as having been “put together in conjunction with Peter Blythin for the Director of Nursing role”. The e-mail goes on to identify the names of four people (AC, DM, GN, and DR) who “[w]ith Peter’s agreement, we are intending to invite … to preliminary interview with Angela during the first week of January and we will come back to you to provide feedback once these meetings have taken place”.

12. The attached long list report (see pages 585 to 591 of the Appeal Bundle) is dated 17 December 2013 and takes the form of a schedule identifying candidates, setting out their current/previous position, making comments and grading them with letters (A denoted “recommended”, B denoted “possible” and C denoted “not recommended”). The Claimant was included in the list but had been graded C (see paragraph 8.23 of the Reasons). The entry relating to her ended:

“Sarina has broad experience gained at a senior level within acute providers and commissioning organisations. She will be known to the Trust having worked there before although our research indicates there were issues about her departure from the organisation.”

The e-mail of 20 December 2013 demonstrates, however, that she was not going to be considered further.

13. The ET recorded that Mr Blythin did not accept that he had agreed “the long list” (see paragraph 8.24). As the ET accepted, there was no evidence that Mr Blythin had been sent the long list report on 20 December 2013 (indeed, it is recorded that he received it on 6 January 2014) but it seems that the ET might have been differentiating between the actual hardcopy “report” and what it described as “the long list”, which may be the list of the proposed interviewees. But, in any event, the proposition in the e-mail was not that he had agreed “the long list report” but it had been “put together in conjunction” with him.

14. When the ET said in the last sentence of paragraph 8.24 that he did “not agree with the proposition that he had agreed the long list” I understand the ET to be finding that he did not accept that he had agreed the invitation of the four candidates to an interview in January. It is not clear as to when this relates, although the context is, of course, December 2013 and I take it that at this point the ET is recording that Mr Blythin did not accept that he had agreed to any list in 2013.

15. The next development on 20 December 2013 was a telephone conversation between Ms Spurgin of Odgers and Ms Stringer of Northumbria. This took place at about 1.30pm. The ET noted a contrast between paragraph 13 of Ms Stringer’s witness statement and paragraphs 13 to 15 of the witness statement of Ms Spurgin. These are respectively at pages 623 and 631 to 632 of the Appeal Bundle. So far as I can make out at paragraph 13 of her witness statement Ms Stringer was discussing the telephone call of 20 December 2013 but in paragraphs 13 to 15 of her witness statement Ms Spurgin was discussing a telephone conversation with Mr Blythin on 12 December 2013. That being so I am not sure why the ET found the contrast significant.

16. Following that telephone conversation Ms Spurgin sent an e-mail to Mr Blythin timed at 14.13 hours (see pages 596 and 597 of the Appeal Bundle). She described the e-mail as “a quick update” and referred to the fact that she had spoken to Ms Stringer “this morning”. She said that Ms Stringer was “happy for us to proceed with arranging preliminary interviews with those individuals we discussed” and enquired of Mr Blythin as to whether he would be available to join a telephone conference call on 10 January 2014 after those interviews had taken place. She continued as follows:

“I have done some further investigations regarding Sarina Saiger, which I would like to share with you.

I finish for Christmas today, therefore if you are able to give me a quick call before the end of the day, I would be most grateful.”

In an e-mail later that day timed at 18.29 hours Mr Blythin wrote “Thanks for the note - sorry I missed you today (just back at my desk following a busy day of meetings”.

23 December 2013 to 2 June 2014

17. The subsequent events are covered by the ET at paragraphs 8.27 to 8.41 of the Reasons. Some of this history can be summarised but some of it must be referred to in detail. The ET plainly regarded an e-mail from Ms Spurgin to Mr Blythin sent on 23 December 2013 at 12.51 hours as being sufficiently important to quote verbatim and I should do the same:

“Thanks very much for your e-mail, I pretty sure [sic] the Christmas slowdown is a myth. We have done some investigations regarding Serena Saiger, one of the applicants for the North Cumbria role. She appears to have been sacked from several of her more recent substantive roles, which included the assistant director role she held at North Cumbria earlier in her career. She appears to have taken North Cumbria to an employment tribunal case which was settled with a significant payout. With this in mind, and the fact that she has not operated at this level in a substantive capacity for some time, we would not recommend taking her forward to preliminary interview. I just wanted to check that you were happy with our assessment before proceeding.

If you could let me know by[2] 10^th January I would be really grateful. I do hope you have a very merry Christmas and a happy new year.”

A few minutes later at 12.54 hours Ms Spurgin sent an e-mail to a colleague at Odgers. This instructed the colleague to “do the reject letters/e-mails for North Cumbria” but (see paragraph 8.27 of the Reasons):

“Could you hold off from Serena Saiger for the time being, until we’ve heard back from Peter Blythin - please see e-mail I just sent to him …”

That can only be a reference to the e-mail set out above and timed at 12.51 hours.

18. Mr Blythin responded to the e-mail, not to Ms Spurgin, but by forwarding it to Ms Stringer and asking to talk to her about it later in the afternoon. He received an out of office message and then e-mailed Ms Stringer’s Personal Assistant, a Ms Gillian Johnson, asking to speak to her later. She replied that she would be available until 4.00 pm and she referred to a telephone number supplied in her e-mail. Mr Blythin replied indicating that he would “try and call between 3:25[3]-3:45”. Ms Johnson suggested in a further e-mail that Mr Blythin might be able to get help from another colleague, a Ms Kelly Angus, who was “travelling back from Cumbria and should be here any time now”.

19. The above history is set out by the ET at paragraph 8.27 of the Reasons. This goes on to record the fact that there was a telephone conversation between Ms Angus and Mr Blythin but refers only to paragraph 7 of the witness statement of Ms Angus (see page 663 of the Appeal Bundle) and to paragraphs 34 to 47 of the witness statement of Mr Blythin (see pages 652 to 654 of the Appeal Bundle). Ms Angus says in her witness statement that Mr Blythin explained “he had some concerns that Odgers had put some information in an email to him which he felt perhaps they should not have done” and that when she read the e-mail she felt she was not able to give Mr Blythin “a view either way” and that Ms Stringer would be better placed to discuss his concerns so she would make Ms Stringer “aware of his call when she returned from the Christmas break” and believed that if Ms Stringer thought Odgers had done anything inappropriate she would take it up with them. Although the ET refer to fourteen paragraphs of the witness statement of Mr Blythin it seems to me that only paragraphs 34 and 35 are of relevance in this context. In them Mr Blythin gives an account more or less the same as that given by Ms Angus with the added detail that he had characterised the e-mail as “ill considered … [and] … clearly inappropriate to take a previous employment claim into consideration when evaluating candidates”.

20. Ms Stringer returned to work after the Christmas and New Year holiday on 2 January 2014. She appears to have attempted to call Mr Blythin and he responded that he was out of the country and suggested either calling him on 3 January 2014, at which time he would still be out of the country, or on 6 January 2014 when he would be back. She appears to have agreed to leave it until the latter date. She said at paragraph 16 of her witness statement that on 6 January 2014 she had been called by Ms Angus about the telephone conversation she had with Mr Blythin on 23 December 2013 and as a result she had looked at the e-mail of that date from Ms Spurgin to Mr Blythin and concluded that there was nothing untoward about it (see paragraph 8.29 of the Reasons). In the meantime, the Claimant had sent Ms Spurgin an e-mail on 30 December 2013 asking about the progress of her application. The latter was on leave and did not reply until 7 January 2014. When she did so she said she was waiting “for confirmation from the TDA” (see paragraph 8.28 of the Reasons).

21. Between 7 January and 9 January 2014 Ms Spurgin made a number of attempts to contact Mr Blythin. She was unsuccessful. She regarded him as “the elusive Peter Blythin” (see paragraph 8.30 of the Reasons). What the ET described as a “telephone short listing conference” took place on 10 January 2014. It was attended by Ms Farrar and Ms Angus of the Trust (the latter, in reality, working with the HR Department of Northumbria), Mr Blythin of the TDA, and Ms Spurgin and Ms McDermottroe of Odgers. Written notes were made and were referred to by the ET but no copies have been included in the Appeal Bundle. Apparently, recollections differed as to whether or not the Claimant was discussed. The ET accepted that she had been discussed in that there was, at least to some extent, a confirmation that she was not to be short listed. By contrast another candidate, who had been sent a rejection letter in December, appears not to have been discussed at all and the ET concluded at paragraph 8.33 “[t]o that extent Dr Saiger was treated differently”.

22. The Claimant was sent a letter on 14 January 2014 informing her that her application would not be progressing further. The Claimant sought an explanation as to why she had not met the criteria. As part of the internal discussions at Odgers in respect of a response, Ms McDermottroe wrote of the Claimant on 20 January 2014 in an e-mail timed at 9.57 am that “[s]he was not [short] listed as we knew she had history” (see paragraph 8.34). In her evidence Ms McDermottroe suggested that she had made a mistake and that “as” should have read “and” but the ET rejected that as “casuistry” and found that “the choice of words was deliberate”.

23. It is clear that the preferred choice out of all candidates was Ms Gail Naylor. She was a late applicant and there seems little doubt that she was chased hard to persuade her to apply. The ET described her as “a convincing winner”.

24. Finally, the ET considered four other matters which occurred after the above events. The first was a coincidental meeting between Mr Blythin and the Claimant in a car park at the premises of the West Herts Trust on 7 March 2014. There was no discussion about her application for the post of Executive Director of Nursing at the Trust. In later correspondence with him in May 2014 following a rejection of her application for the interim post of Deputy Director of Quality and Assurance at the Manchester Mental Health and Social Care Trust, which is the second of the subsequent events, he assured her that he had not had her “blacklisted from consideration from [sic] this position or for any other positions in the NHS trust sector” and that the TDA had not had any involvement in the Manchester appointment process. The third event related to an interim post as Senior Governance Manager at the Cheshire Merseyside Commissioning Support Unit, in respect of which her application was initially successful and then the offer was withdrawn. The fourth event related to the position of Deputy Director of Clinical Quality at the Manchester North West Offices of the TDA for which she was short listed but from which she withdrew when she found that Mr Blythin was one of the interviewers. She contended that all of these provided evidence that, in effect, she had been blacklisted.

The ET’s Decision

25. In paragraph 10 of the Reasons, which is entitled “Further findings of fact and conclusions”, the ET decided that the Trust, via Ms Farrar, the Chief Executive, had encouraged the Claimant to apply in a telephone conversation of 19 November 2013 (see paragraph 8.10 and 10.3[4] of the Reasons) and that Ms Farrar might “have said something like “you sound like a perfect candidate for the post””, although she had not said that she “fitted the criteria for it in full”.

26. At paragraph 10.5, in the context of consideration of the finding in another ET case brought by the Claimant unsuccessfully against a party not involved in any way in the current case that the Claimant lacked credibility, the ET in the instant case accepted that might have relevance to the issue of credibility in the instant case and declared that it “had some doubts about the credibility and reliability of a number of aspects of the claimant’s evidence”. On the other hand, the ET did not think that the case turned on her credibility and, in any event, expressed the view “there are aspects of the witness evidence given by the witnesses for the respondents which cause us concern as to their credibility”.

27. The ET also accepted that the requirement of “[a] minimum of 3 years experience in a director or equivalent position within a large complex organisational environment” was an essential qualification for the job of Executive Director of Nursing at the Trust (see paragraph 10.6 of the Reasons). Equally, the ET accepted that the successful candidate would have to “hit the ground running”. As a result, the ET reached the conclusion at paragraph 10.7 of the Reasons “that even on the face of the information the claimant did not meet the essential criteria for the post specified”.

28. At paragraph 10.10 the ET states that it regards “features” of the “long list report” as being “highly significant”. This significance appears to have been textual and to relate to the way in which the Claimant’s entry was thought by the ET to differ markedly from the entries relating to the other candidates. The passage, to which the ET must have been referring is set out above at paragraph 12 of this Judgment. Also, by comparison with another rejected candidate, the ET thought that notification of rejection had been delayed in the Claimant’s case and that was another significant difference in the way the Claimant was treated.

29. On the question of knowledge the ET concluded that Ms Stringer, who was acting for the Trust, albeit that she was working for Northumbria, had been told in late November or early December by an employee of the Trust that the Claimant had applied and that she had been a former Deputy Director of Nursing at the Trust who had brought successful proceedings against the Trust, which had been upsetting (see paragraph 8 of her witness statement at page 622 of the Appeal Bundle, as referred to at paragraph 10.11 of the Reasons). Moreover, Ms Stringer knew that the claim had involved “a race issue” (the expression she used in her witness statement) and had been “a race claim” (the ET’s Reasons at paragraph 10.11).

30. The ET concluded that in discussing the listing of four people for preliminary interviews in January 2014 with Odgers during the telephone conversation on 20 December 2013 Ms Stringer, who was well aware of the remarks made about the Claimant in “the long list report”, was, in effect, endorsing the exclusion of the Claimant. Therefore, that exclusion was by an agent of the Trust acting within the scope of her agency (see section 109(2) EqA) and the fact that the Trust neither knew nor approved of the decision did not matter (see section 109(3) EqA). Therefore, the Trust was liable by this route although the ET was not prepared to conclude that the Trust was also liable as a result of the knowledge and actions of Ms Farrar (see also paragraph 10.11 of the Reasons). The ET also found at paragraph 10.11 that anybody who had worked in the HR Department of the Trust in 2009 would have known about the proceedings and retained that knowledge. This would have included Ms Hayton, who was the Trust’s recruitment manager. The significance of this finding is not made clear. Ms Stringer had said in her witness statement that she had been told by Mr Gallagher of the Trust’s HR department that he had been informed by Ms Hayton that the Claimant “had brought successful employment tribunal proceedings which had caused some “considerable upset” for the individuals involved” and that Ms Stringer was vaguely aware “of a prior employment claim against the Trust some years before involving a race issue”.

31. The ET also concluded that Odgers knew that the Claimant had previously brought proceedings against the Trust and described that knowledge as “cumulative”. It started with the telephone conversation between Ms Spurgin and the Claimant on 5 December 2013 in which the Claimant had referred to previous difficulties she had encountered at the Trust. This was reinforced on the same day by the conversation between Ms Spurgin and her colleague Ms McDermottroe, in which the latter had also recollected that “the claimant had left the Trust under difficult circumstances and then taken the Trust to an Employment Tribunal”.

32. The ET accepted, however, that it was not until after the telephone conversation between Ms Spurgin and Mr Blythin on 19 December 2013 had ended that she conducted the Internet search, which produced the information she subsequently added to the note of the telephone conversation with Mr Blythin on that date (see paragraph 10.11 at page 32 of the Appeal Bundle). The ET also found that the information had come from that Internet search and not from any other source (see the same paragraph at the same page). As a result of that Ms Spurgin knew on 19 December 2013 that the Claimant had previously brought race discrimination proceedings against the Trust, “which resulted in a significant payout”. In other words she was aware that the Claimant had done a protected act.

33. So far as Odgers were concerned the ET concluded that Ms Spurgin had not based her recommendation only on an assessment of the Claimant’s job application and the criteria for the job but had based it to a significant extent on the fact she had brought proceedings complaining of race discrimination. Deciding not to take the Claimant’s application forward amounted to a detriment for the purposes of section 27(1) EqA (the prohibited conduct of victimisation) and of section 55(5)(d) EqA (the application of that conduct in the context of an employment service provider, namely Odgers, victimising the Claimant by subjecting her to a detriment in the provision of an employment service). Also, contrary to section 111(2) EqA, Odgers had caused the Trust to commit a basic contravention of section 39(1) EqA by not offering the Claimant employment or, contrary to section 112(1) EqA, had knowingly helped the Trust to commit that basic contravention.

34. This reasoning, of course, presupposes that the Trust had committed a prohibited act. The ET deal with this in paragraph 10.13, which of findings fact and conclusions. It is at the heart of the Trust’s appeal and I need to set it out in full:

“10.13. We next turn to the position of the first respondent. We have already found that AS was acting as the agent of the first respondent for the purposes of this appointment procedure. She was herself aware of the claimant’s protected act at the time of the telephone conversation on 20 December, quite independently of the contents of the recommendation in the long list report from LS. From a sensible reading of that part of the report referring to Dr Saiger, it is in our view obvious that the recommendation in respect of her was tainted by knowledge of her protected act. We can certainly reasonably conclude that AS endorsed the recommendation because of the tainted reasoning in the absence of a non discriminatory explanation from her. We reject AS’s non discriminatory explanation. We are satisfied that her knowledge of the protected act played a significant part in her decision that Dr Saiger should not be long listed. The first respondent thereby committed an act of victimisation.”

The above passage is a finding to the extent it appears to be a rejection of Ms Stringer’s evidence that she did not know on 20 December 2013 the Claimant had brought race discrimination proceedings against the Trust. The passage is part analysis in that it regards what Ms Stringer did as being an endorsement of the recommendation. It is part conclusion it in that it rejects her “non discriminatory explanation”.

35. Then the ET turned to the position of the TDA at paragraph 10.14 of the Reasons. In this context the ET set out in some detail the role and function of the TDA in the appointment process, drawing on both Mr Blythin’s witness statement and the document entitled “Senior Staff Appointments Processes”. These clearly demonstrated that the TDA had involvement in such appointments and the ET found “that PB chose to have significant input in the appointment process from November when he was advising on the appointment of Odgers” and that he had been consulted by “AS”[5] on a number of occasions from 12 December 2013 onwards about the identity of candidates and who should be on the long list and short list. There then follows at paragraph 10.14 (page 35 of the Appeal Bundle) a critical passage, which has been the subject of much scrutiny in this appeal and which I therefore set out in full:

“… The evidence shows that he had the opportunity to suggest possible candidates and that he at least had the opportunity to indicate who should not be candidates. Before the long listing report was submitted to the Trust clearly he was in a position to influence the identity of the candidates. It is apparent for example that he favoured the inclusion of GN, having some previous knowledge of her. In the circumstances we find that PB (as an employee of the second respondent, but not as an agent of the first respondent) was in a position to cause or induce the first respondent to select or not to select a particular candidate and in addition to help the first respondent to select or not to select a particular candidate, and the same applies with regard to the second respondent. It is abundantly clear from the communications which took place and are described at paragraphs 8.17 to 8.37 that the second respondent considered that any recommendation they made concerning the identity of those to be long listed and short listed was to be subject to the approval of PB.

We accept of course that facts must be proved from which we could reasonably infer that he did participate in the decision not to long list the claimant knowing or believing that she had done a protected act as described.”

The ET then rejected the argument that Mr Blythin must have known about the history of the Claimant as being “mere conjecture”.

36. Paragraph 10.14 continues with the ET making a series of deductions. Firstly, the inclusion of the Claimant’s name in the note made on 19 December 2013 (see page 580 of the Appeal Bundle) led to the conclusion that she was “notionally on the long list to go forward”. Secondly, that the note also led to the conclusion that Mr Blythin had spoken to Ms Gail Naylor (see page 582 of the Appeal Bundle). Thirdly, that “[t]here must have been some further communication between PB and LS or AMcD for that note to have been made”. Fourthly, that at the time the note was made it was the intention that “only DM, AC, GN and DR” were “intended to go forward in the long list”. Fifthly, that meant the “claimant has been excluded”. Finally, that this was “with Peter’s agreement”. Those deductions led to this conclusion, which lies at the heart of the appeal by the TDA (see paragraph 10.14 at page 36 of the Appeal Bundle):

“… The removal of the claimant comes within a few hours of the Google search on 19 December. The use of the expression “further investigations regarding Serena Saiger” in LS’s e-mail to PB at 14:13 on 20 December indicates that further investigations beyond those that are contained in the note at page 459B may have taken place, but after a decision had already been taken to remove her from the long listing process. There is no evidence that PB responded to that request at the time, but he did respond when the detailed e-mail was sent to him on 23 December by LS at 12.51pm, see paragraph 8.27. We conclude that by that stage PB must have become aware of the claimant’s past history with the Trust, either from LS or AMcD. We considered whether or not the fact of the sending of that e-mail, with its request to check that he was happy [with the] assessment indicates that he was not aware before it. We conclude however that the third respondent was now seeking confirmation in writing that he approved the selection of the now long list. We accept however that the contents of the e-mail would have set alarm bells ringing in PB’s mind and did so which explains why he attempted to telephone AS that afternoon.

An issue which we have had to consider with great care was the issue whether he did in fact follow up the e-mail to AS or if he did not, why not. There are two possibilities. Either he did follow it up beyond the telephone conversation with KA but has not informed the Tribunal of what happened, or he did not follow it up despite having gone to the trouble of directing his secretary to book a diary slot (see paragraph 8.29) for a call to AS on 3 January, when she was expected to be back from leave. PB’s explanation is that he has a very full diary and has many meetings and telephone conversations but presumably it was precisely for that reason that he had told his secretary to book a specific diary appointment. In either event we regard it as significant that there is an apparent failure by PB to respond to a whole series of e-mail and telephone enquiries from the third respondent which are described in paragraphs 8.27 to 8.29 above. This is not a case of a single missed call or e-mail. The third respondent in the end, on 9 January 2014, decided to “leave it” because PB was on the shortlist call the next day. In other words, they had decided to follow it up in that telephone call, ‘it’ being the approval of the Odgers recommendation as to the long list. That is in fact what happened, and this was PB’s opportunity to raise the issue that he did not like the contents of the LS e-mail to him of 23 December, which dealt only with Dr Saiger’s application. There is also the fact that in two separate emails on 20 December LS contended the long list report had been “put together in conjunction with PB” and that “with Peter’s agreement” we are intending to invite the following candidates for preliminary interview with AMcD …” naming the four, including at that stage DM, but excluding the claimant. It is true that these e-mails were not shared with PB at the time, and he therefore had no opportunity to dispute the contents, but they clearly indicate that PB had authorised the claimant’s removal from the long list or at least we could reasonably infer that fact. We reject PB’s denial that he was aware on 23 December the claimant had been “switched off”. We conclude on the balance of probabilities that he was a party to a discussion with LS and/or AMcD on 20 December at which she was switched off and that the reasons, including the fact that she had done a protected act, were mentioned. It has been claimed in submissions that it was never put to PB that he was aware that she had done a protected act in cross-examination. That is in fact not correct. Our notes record that it was put in cross-examination but that he denied it. We reject his denial.

For these reasons we find PB played a material part in the decision to exclude the claimant with the relevant knowledge.”

37. The final part of the decision which is pertinent mainly to the cross-appeal is to be found in paragraph 10.16 of the Reasons. These explain the conclusion of the ET that even in the absence of victimisation the Claimant had only a 50% chance of remaining on the long list and no chance of being short listed. The reasoning involves a conclusion by the ET that “[t]here was room for the claimant to be marked B/C or possibly B” and, presumably that being so, “there was a 50% chance” of her being included on the long list. As to the short list, the ET concluded that the Claimant “did not in fact meet the criteria either of having three years experience as an Executive Director of Nursing except at a small organisation which was a PCT, and not a hospital Trust, and it was historical in being eight years before” and “[n]or had she met the alternative criterion of an equivalent post in a large complex organisational environment”.

TDA’s Submissions on Appeal Number UKEAT/0167/15/LA

38. In summary, Mr Reade submitted that in paragraph 10.14 of the Reasons at pages 36 and 37 of the Appeal Bundle the ET had reached a conclusion which could not sustain the finding that TDA had victimised the Claimant. Concluding that Mr Blythin had been in a position to cause or induce the Trust to eliminate the Claimant from further consideration was not enough to make TDA liable under sections 111 or 112 EqA. Mr Blythin, “playing a material part”, as the ET had put it at paragraph 10.14, even if such a finding was available to the ET on the evidence, which Mr Reade submitted it was not, would have to amount either to an instruction to the Trust, or to causing the Trust, or to inducing the Trust, to act contrary to section 39(3) EqA (see section 111(1), (2) and (3)). Also to be liable as a helper or aider under section 112 EqA there must be an act of “knowingly helping” the Trust and “playing a material part” was far too general a finding to satisfy that statutory formula.

39. The arguments about the conclusions reached by the ET are covered in ground 1 of the grounds of appeal and were developed by Mr Reade as follows. The inference drawn in paragraph 10.14 of the Reasons at page 37 of the Appeal Bundle that Mr Blythin “was a party to a discussion with LS and/or AMcD on 20 December at which she was switched off and that the reasons, including the fact that she had done a protected act, were mentioned” was not supported by any findings of primary fact. Indeed, the ET had been aware of the controversial potential of this inferential conclusion because in the last two sentences of paragraph 10.14 they address the submission that it had never been put to Mr Blythin that he knew the Claimant had “done a protected act”. The ET rejected that as incorrect. It had been put to Mr Blythin and he had denied it but the ET rejected his denial.

40. Mr Reade took me through the evidence in this context. I have set out the ET’s findings and evidence upon which they were based above. There is no need to repeat them here; suffice it to say that Mr Reade submits those findings cannot support that conclusion. Not only is there no evidence of any such conversation but also the context strongly supports the opposite inference, namely that there was no such conversation. This is most apparent from the e-mail timed at 18.29 on 20 December 2013 set out above at paragraph 16 of this Judgment and from the subsequent e-mail traffic on 23 December 2013, which I summarised above at paragraphs 17 to 19 of this Judgment.

41. Central to the ET’s reasoning were the contents of the note set out above at paragraph 11 of this Judgment. These led the ET to reach the five deductions (inferential conclusions) that I summarised above in the first part of paragraph 36 of this Judgment. The critical deduction (inferential conclusion) is that “[t]here must have been some further communication between PB and LS or AMcD for that note to have been made”. But what the ET regarded as an inevitable conclusion ignored the fact that the note is entirely consistent with the contents of the e-mail, which Mr Blythin had sent to Ms Spurgin at 9.01 on 20 December 2013 and with the ET’s own finding that Mr Blythin had spoken to Ms Gail Naylor early that day.

42. What the ET ignored is that Ms Gail Naylor had told Ms McDermottroe before 20 December 2013 that she would like to be considered as a candidate, that Mr Blythin had taken the view before 20 December 2013 that Ms Gail Naylor would be a good candidate, that his evidence about the conversation on 20 December 2013 with Ms Gail Naylor was that she had been uncertain then as to whether she wished to go ahead with any application and she had not actually applied until 9 January 2014. Thus, the more probable view of it was that Ms Gail Naylor was added by Odgers without any report of the actual contents of the conversation between Mr Blythin and Ms Gail Naylor having been communicated to Odgers, who, in the belief that the position still remained as it had been before 20 December 2013, namely that Ms Gail Naylor was keen to apply, added her name to the long list without having spoken to Mr Blythin.

43. Alternatively, even if there had been a conversation, there was no basis for the conclusion that its contents had probably included the suggestion that the Claimant should be “switched off”. The ET accepted that Mr Blythin had not seen the e-mails of 20 December 2013 and had not seen the long list report. In such circumstances, the significance of the statements by Odgers about the identification of four candidates for telephone interviews having been “with Peter’s agreement” and that the long list report had been produced “in conjunction with Peter Blythin” did not tend to prove that there had been a conversation on 20 December 2013 but, to an extent, depended on such a conversation already having taken place. In fact, Ms Spurgin had given evidence that it had been agreed earlier than 20 December that those four candidates were likely to proceed. She had also said that there had been no discussion about candidates not likely to proceed. The ET’s inferential conclusion confused the fact that Mr Blythin had earlier (and, for that matter, later) approved the telephone interviews of the four candidates with a discussion about the rejection of other candidates. These were separate and distinct concepts and the former by no means led inevitably, or even probably, to the latter.

44. Mr Reade submitted that on any analysis of the chronology of 20 December 2013 the most likely time for a conversation between Ms Spurgin and Mr Blythin was between about 11.00 and 13.00 hours. What then, asked Mr Reade, could explain the e-mail from Ms Spurgin to Mr Blythin timed at 14.13 hours and his reply timed at 18.29 hours (see above paragraph 16 of this Judgment)? She said in her evidence that she had contacted him because she was uncomfortable that he had not been involved in the discussion about the telephone interviews. Mr Reade asked on what basis had that evidence been rejected? Viewed objectively those e-mails suggested that he had not made any input into the discussion at that stage.

45. The ET’s approach to this is set out in the first paragraph of the passage from paragraph 10.14 (see page 36 of the Appeal Bundle) reproduced above at paragraph 36 of this Judgment. It was based on the proposition, which the ET elevated into a finding, that the real reason Ms Spurgin was attempting to contact Mr Blythin was to secure his written approval of what had happened. Mr Reade submitted it was neither based on primary fact nor on proper inference but amounted to rank speculation. It was inconsistent with the contemporary documents, inconsistent with Ms Spurgin’s unchallenged evidence that she had delayed writing to the Claimant because she wished to talk first to Mr Blythin and inconsistent with the fact that later there was no request to him to give written approval. Moreover, although not expressly articulated by the ET, its conclusion must be based on the implicit proposition that the e-mail sent by Ms Spurgin to Mr Blythin on 23 December 2013 was a disingenuous document designed to disguise the fact that there had been an earlier conversation. Yet this is contradicted by the finding that it raised “alarm bells” (see paragraph 10.14 of the Reasons at page 36 of the Appeal Bundle).

46. Not only did the approach of the ET involve an error of law in terms of conclusions either not supported by primary evidence or contrary to primary evidence but Mr Reade did not shrink from the alternative proposition that, in any event, these were conclusions that no reasonable Tribunal properly directing itself on the evidential material could have reached. It also must follow that there was inadequate reasoning.

47. Furthermore, Mr Reade submitted that there had been serious procedural irregularities amounting to an error of law because inferential conclusions had been drawn without the witnesses having had an opportunity to deal with it. Mr Blythin never had the opportunity to give his evidence as to the proposed conclusion that he had a conversation on 20 December 2013, which he was seeking to hide. Ms Spurgin never had the opportunity to deal with the suggestion that she was disingenuous in her e-mail of 23 December 2013.

48. Mr Reade referred me to paragraphs 58 to 62 of the judgment of Underhill LJ The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658. These paragraphs amount to criticism of a failure to explain the reasoning lying behind a particular conclusion. He also reminded me of the judgment of Ralph Gibson LJ in Hereford and Worcester County Council v Neale [1986] IRLR 168 at page 175 where that Judge refers to the need for a party to be given an opportunity to deal with any matters which might occur to the ET whilst deliberating but which have not been articulated or debated in the hearing. In the instant case the ET had reached the conclusion as to the existence of a telephone conversation without giving the relevant parties any opportunity to deal with either the existence of such conversation as a primary fact or, if a party denied such a conversation, to deal with the extent to which such a conversation could properly be inferred from the primary facts. The ET had also reached conclusions about the real purpose of documents without giving the author the opportunity to deal with the contention that the document had a purpose other than that stated in it.

49. Ground 2 can be dealt with more briefly. It also relates to the findings, inferences and conclusions which are the subject of ground 1 but it is really in the alternative. Accepting, contrary to the arguments in ground 1, that there was a telephone conversation between Mr Blythin and Ms Spurgin on 20 December 2013 Mr Reade submitted that the specific inferential conclusion that during it Mr Blythin had been informed that the Claimant had done a protected act was either not supported by primary facts or contradicted by primary facts or a conclusion which no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was inadequately reasoned. Also, for the same reasons advanced in relation to ground 1, it constituted a serious procedural irregularity.

50. Ground 3 also relates, in general terms, to the findings, inferences and conclusions which are the subject of ground 1 but it is concerned specifically with the telephone conversation between Ms Kelly Angus and Mr Peter Blythin on 23 December 2013 (see above at paragraph 19 of this Judgment). Mr Reade submitted that this was evidence which could only support Mr Blythin’s account. The ET, in finding that the e-mail from Ms Spurgin to him on 23 December 2013 had raised “alarm bells” (see paragraph 10.14 of the Reasons at page 36 of the Appeal Bundle), must be regarded, at the very least, as being on the brink of embracing that, when, abruptly, it had veered completely in the opposite direction of finding that he had known facts about her previous litigation since 20 December 2013 and, by implication, that his account was false. Yet his evidence was entirely consistent with that of Ms Angus, something about which the ET do not comment. Indeed, their reference to it at paragraph 8.27 of the Reasons at page 13 of the Appeal Bundle simply records the written evidence without any acknowledgement at all to the oral evidence or without any explanation as to how the evidence, whether written or oral, is consistent with the inferences drawn. This constituted an error of law either in terms of inference not supported by primary evidence or in terms of a conclusion which no reasonable Tribunal properly directing itself on that evidence could have reached.

51. Grounds 4 and 5 address issues of statutory interpretation against the factual matrix. Ground 4 addresses the terms of section 111 EqA. Mr Reade’s starting point was paragraph 1 of the Judgment (see page 2 of the Appeal Bundle), which reads that “[t]he … Second … Respondent … victimised the claimant contrary to Section 27 of Equality Act 2010 in respect of her exclusion from the long list for the post of Director of Nursing”. As Mr Reade pointed out section 27 defines the prohibited act but not the contravention of the statutory right.

52. The ET’s analysis of the position of the respective parties is to be found in paragraph 10.12 of the Reasons (see page 33 of the Appeal Bundle). It is in these terms:

“10.12. We next consider the crux of the defence being put forward by the first and third respondents. This centres largely upon the outcome of the telephone conversation between LS and AS on 20 December 2013 at about 1:30pm. The essence of the defence being jointly run is that it was LS[6] who made the decision to reject the claimant’s application; that that decision was based solely upon the contents of the claimant’s application form and the application of the criteria; and the third respondent did not take the decision but merely made a recommendation. We do not agree with any such contention. First, it ignores that the making of a recommendation that an application for employment will not be taken forward to a short listing stage in itself amounts to a detriment which is caught by both sections 27(1) and, in the case of the third respondent, by section 55(5)(d) of the Act. We also find that the third respondent “caused” (section 111(2)) or at least knowingly helped (section 112(1)) the first respondent to commit a basic contravention under section 39(1) of the Act. …”

At the end of paragraph 9.6 of the Reasons the ET concluded that TDA was not an employment service provider within the scope of section 55 EqA (see page 24 of the Appeal Bundle). Although the ET undertook to explain that further, I do not think that paragraph 10.12 constitutes such further explanation and, if it does not, I do not know where such an explanation is to be found in the Reasons. Later in the Reasons at paragraph 10.14 the ET found that Mr Blythin was not an agent of the Trust (see page 35 of the Appeal Bundle) and, presumably, although there is no explicit finding to this effect, likewise TDA was not an agent of either the Trust or Odgers. If so, section 110 EqA can have no application. Indeed, the words “cause” and “induce” used in the relevant passage of paragraph 10.14 suggest that the ET was thinking in terms of section 111 EqA.

53. In any event, on the basis of the finding that TDA had not contravened section 55, the two possible contraventions of the EqA were that of Odgers, as an employment service provider within the scope of section 55, and that of the Trust, as an employer, within the scope of section 39. Sections 111 and 112 must, therefore, be the conduit through which the TDA could be liable in respect of the contraventions of the Trust or Odgers. Mr Reade complained that the ET, whilst referring to the concepts of “causing” and “inducing” had made no factual findings that the TDA had either caused or induced the contraventions by Odgers or by the Trust. The actual words used by the ET in paragraph 10.14 of the Reasons are that Mr Blythin was “in a position to cause or induce” and that is not the same thing as a finding of fact that he had caused or induced either Odgers or the Trust to act in that way. Moreover, when the ET state in paragraph 10.14 at page 35 of the Appeal Bundle that what it needed to consider was whether Mr Blythin “did participate in the decision not to long list” it was not articulating what should be considered under section 111 because “participating” is by no means the same as or equivalent to “instructing”, “causing” or “inducing”. This misdirection led to the failure to consider the right concepts and amounted to an error of law.

54. In addition, submitted, Mr Reade, there was another fundamental problem with the analysis that the route to liability in respect of TDA is through section 111. This arises as a result of the wording of section 111(7), which reads:

“This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.”

55. This is by no means an easy provision to understand. Mr Reade submitted that it could not apply as between corporate entities. Moreover, the ET had simply failed to grapple with arguments addressed to it that the section could not apply. TDA was not in any position to commit any basic contravention of the EqA in relation to either the Trust or Odgers and the ET had failed to explain what brought the case within the scope of section 111. Moreover, the suggestion in paragraph 40 of the Claimant’s skeleton argument for this appeal drafted by Ms Hogben of counsel (see page 130 of the Appeal Bundle), which Mr Powell had adopted, that the “basic contravention” could be any contravention of any of Parts 3, 4, 5, 6 and 7 EqA, so that a contravention of section 29(6) would suffice, was simply wrong. Moreover, it did not address the difficulties posed by section 111(7) EqA. The problem with the vicarious liability approach as an answer to section 111 EqA was that the acts of a corporation do not make an individual employee liable; liability travels in the opposite direction, i.e. from employee to the corporation.

56. Likewise, in relation to section 112 EqA, the ET has simply never grappled with it either in terms of factual findings or legal analysis. No factual findings have been made by the ET in relation to the concept of “knowingly help” and although the ET had referred to Anyanwu v Southbank University [2001] ICR 391 and Hallam v Avery [2001] ICR 408 in the Reasons these cases led to the current statutory rubric rather than explained it. As a result of its conclusion that participation amounted to a breach of section 112 EqA the ET misdirected itself as to the concept of “aiding” or rather “knowingly [giving] help”. In order for a breach to arise Mr Blythin must have been found to have knowingly helped the Trust or Odgers or both to discriminate. Indeed, although he was not conceding there was evidence Mr Blythin knew on 20 December 2013 that the Claimant had previously brought race discrimination proceedings against the Trust, even assuming that to be the position, it would not have been enough for Mr Blythin to know that the Trust was acting in a discriminatory way. The evidence must go on to show that he was intentionally aiding it to do so and the evidence showed nothing of the sort.

57. As to disposal, Mr Reade submitted that if I concluded the ET had erred in law by finding there had been a telephone conversation between Ms Spurgin and Mr Blythin on 20 December 2013, then I should allow the appeal and substitute a finding that the TDA was not liable. In his submission this case fell into the second category (i.e. “(b)”) identified by Laws LJ in paragraph 21 of his judgment in Lincoln College v Jafri [2014] EWCA Civ 449, [2014] ICR 920, the pertinent part of which reads:

“21. … The appeal tribunal’s function is (and is only) to see that the employment tribunals’ decisions are lawfully made. If therefore the appeal tribunal detects a legal error by the employment tribunal, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the appeal tribunal is able to conclude what it must have been. In neither case is the appeal tribunal to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the employment tribunal, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal.”

Alternatively, if I did not accept his primary submission, he submitted that the matter would have to be remitted to a differently constituted Tribunal for a rehearing.

The Trust’s Submissions on the Second Appeal (Appeal Number UKEAT/0276/15/LA)

58. Mr Sweeney’s overarching theme was that Ms Stringer should not have been condemned as the author of the discriminatory act of victimisation. Although she had accepted a recommendation about the process of telephone interviewing with a view to assembling a short list, the ET had found that acceptance to have been “tainted” because Odgers had made the recommendation partly as a result of the Claimant having brought proceedings against the Trust in the past. He submitted that cannot be enough to found liability. The judgment of Underhill LJ at paragraphs 32 to 51 in the Court of Appeal decision in CLFIS v Reynolds [2015] EWCA Civ 439, [2015] ICR 1010 illustrates the alleged discriminator must be aware of and adopt the discrimination of others as opposed to being liable by acting on the reports of others without knowing their motivation.

59. So in the instant appeal any finding of liability on the part of the Trust must be based either on Ms Stringer being aware that part of the reason Odgers made the recommendation was because the Claimant had brought proceedings against the Trust in the past or Ms Stringer was not aware of that motivation by Odgers but accepted their recommendation because independently she did not want the Claimant to go further in the appointment process as a result of the Claimant having brought proceedings complaining of race discrimination against the Trust in the past. Looked at either way, this was a serious allegation against a senior manager in the public service. Moreover, whilst Mr Sweeney accepted that sub-conscious motivation needed to be considered by the ET, such a conclusion could only be drawn when there was a clear evidential basis for it and that basis was explained in the Judgment.

60. Mr Sweeney’s first submission was that the descriptions of victimisation in section 27(1) EqA and of discrimination as an employer in section 39(3) EqA both require the Claimant to have suffered a detriment but in the context of this case, where it had been found she would only have had an even chance of an interview, and no chance of appointment, she had not suffered any detriment. Secondly, he submitted that the ET had reached a decision that no reasonable Tribunal properly directing itself could have reached. It was clear both from the Reasons and from the Reconsideration Reasons that the ET found the Trust had endorsed a “tainted report” but there was no finding that the Trust had actually adopted or approved “the taint”. In those circumstances, the rejection of the Trust’s non-discriminatory explanation must amount to a perverse conclusion.

61. Thirdly, so far as the Trust was concerned, the fundamental issue was whether the decision communicated to Ms Stringer by Odgers on 20 December 2013 had been motivated by the fact Claimant had done a protected act. He submitted that the ET had gone wrong because it had mixed up the motivation of Odgers with that of Ms Stringer. This is what he called “the composite approach”. The problem with it was that it conflated the position of Odgers with that of the Trust. Acceptance of the recommendation alone cannot provide the foundation for a finding of victimisation. There must be a finding of an acceptance on the part of the Trust of the recommendation on the basis that, at least in part, the Claimant had done a protected act. That aspect of the reason why the recommendation had been made must also be “endorsed” by the Trust, if the Trust is to be held liable.

62. But the fact that Ms Stringer knew that the Claimant had brought proceedings based on race discrimination does not supply any evidence of endorsement of those reasons. Nor is it enough for the ET to conclude that is why she endorsed the recommendation. There must be evidence in answer to the question - why did Ms Stringer endorse the recommendation - that establishes that, acting on behalf of the Trust, at least part of her reasoning was she did not want somebody to go forward who had previously brought discrimination proceedings. Mr Sweeney asked, where is the evidence of that?

63. He accepted that any perversity argument must be able to cross a high threshold. He submitted in this case his perversity argument does so because the following propositions are beyond challenge; firstly, the Claimant had never met the criteria for appointment or even for further consideration; secondly, likewise another applicant, who had not done a protected act but who had not been taken further in the process, also did not meet the criteria, thus illustrating the consistent approach of the Trust; thirdly, those who were taken further in the process clearly met the criteria.

64. Furthermore, the clarity and consistency of this explanation also demonstrated a fundamental error in relation to shifting the burden of proof. If paragraph 10.13 of the Reasons is what the ET regarded as the prima facie case, nothing in the paragraph amounts to anything more than a finding of unreasonable behaviour and as the decision of the House of Lords in Glasgow City Council v Zafar [1998] ICR 120 makes clear something more is necessary. If there is no prima facie case of discrimination, as was obviously the case here, then there can be no question of the burden of proof shifting to the Trust. Whether that amounts to an error of law in reaching a conclusion totally unsupported by the evidence or an error of law because no reasonable Tribunal properly directing itself could have arrived at that conclusion is a matter of analysis but either way, the conclusion cannot stand. The perversity here was firstly in relation to the burden of proof, in relation to wrongly drawing adverse inferences and secondly in rejecting Ms Stringer’s evidence, which was unchallenged, that she and Ms Spurgin had never discussed the Claimant. Alternatively, even if that submission could not be accepted, then the ET erred because, at the very least, it has failed to explain why it rejected Ms Stringer’s evidence.

65. Like Mr Reade, Mr Sweeney submitted that there had been a serious procedural irregularity because Ms Stringer had never been confronted with the proposition that she was motivated to recommend the rejection of the Claimant because of her knowledge of the previous proceedings, which the Claimant had brought against the Trust. The written and oral evidence was that Ms Stringer had made the decision that the Claimant’s application should not progress further on 20 December 2013 acting on the long list report made by Ms Spurgin of Odgers but without any discussion between them about the Claimant. There was no evidence that Ms Stringer knew about, or had any involvement in, the internal discussions between various employees of Odgers in January 2104, as referred to by the ET in paragraph 8.34 at pages 15 and 16 of the Appeal Bundle.

66. But in paragraphs 10.12 and 10.13 of the Reasons (set out above respectively at paragraphs 52 and 34 of this Judgment) the ET concludes that the recommendation made by Odgers that the Claimant should not go forward was influenced by the knowledge, which Odgers had acquired, about the previous proceedings brought by the Claimant against the Trust and “endorsed” by Ms Stringer on behalf of the Trust “because of the tainted reasoning” and that “her knowledge of the protected act played a significant part in her decision that [the Claimant] should not be long listed”. If the Trust accepted the Claimant’s proposition that there had been no erroneous transposition as between Ms Stringer and Ms Spurgin in paragraph 10.12 of the Reasons then the Trust’s position would be stronger because it would mean that there would be no reference to Ms Stringer in paragraph 10.13. Mr Sweeney felt unable, however, to accept this particular gift horse and maintained that the reference to “LS” should be a reference to “AS”.

67. Mr Sweeney submitted that this was a decision which no reasonable Tribunal probably directed could have arrived at on the evidence before it. In particular he emphasised that, given the ET had accepted the Claimant could not meet the criteria necessary for interview, that rendered unsound the finding that the Claimant had established a prima facie case of discrimination. The approach of the ET to this aspect of the case amounted to taking a “composite approach”. I understood him to mean by this that the ET had erroneously reasoned that the effect of the investigations by Odgers into previous proceedings and the already existing knowledge of Ms Stringer about the Clamant having brought proceedings against the Trust complaining of race discrimination could be synthesised into the proposition that the Claimant had been taken no further because she had done a protected act.

68. Also the ET had been wrong, he submitted, to reach that conclusion when her evidence that she had endorsed the recommendation because the Claimant did not meet the necessary criteria for interview had not been challenged. He adopted Mr Reade’s submissions but, in addition referred to what he called the rule in Browne v Dunn [1893] 6 R 67 as explained in paragraph 50 to 60 of the Court of Appeal’s decision in Markem Corporation v Zipher Ltd [2005] EWCA Civ 267. Ms Stringer, and, therefore, the Trust, had never had the opportunity to answer the allegation that her real motivation for endorsing the proposal that the Claimant should not go further in the process was that she had brought race discrimination proceedings against the Trust in the past. Alternatively, Ms Stringer, and, therefore, the Trust, had not had an opportunity to address the proposition that this was her subconscious motivation.

69. As to disposal, Mr Sweeney took the same position as Mr Reade. Either I should substitute a finding that the Trust had not discriminated or, if I felt unable to take that step, then the matter must be remitted for a complete re-hearing before a differently constituted ET.

The Claimant’s Submissions on the Appeals by TDA and the Trust

70. Mr Powell’s overarching submission was that there was no error of law disclosed by either of the grounds of appeal or skeleton arguments nor had that position changed as a result of the oral arguments. The whole of each appeal amounted to nothing more than an invitation to me to retry the case and re-evaluate the evidence, an obviously impermissible activity for this Tribunal. The critical questions, answered by the ET in the Claimant’s favour, related to what had been discussed between Ms Spurgin and Ms Stringer on 20 December 2013 and whether there had then been a further discussion between Ms Spurgin and Mr Blythin on that date. These are factual matters and factual matters were for the ET to weigh up. During that process the ET had to evaluate the significance and meaning of the documentary material. The conclusion that there had been a telephone conversation between Ms Spurgin and Mr Blythin on 20 December 2013 was a finding of fact open to the ET on the evidence. In particular, the reference to Ms Naylor in the long list report supported the finding of further communication between Ms Spurgin and Mr Blythin. In any event, the ET had been entitled to infer such a discussion from the evidential matrix.

71. Likewise, the significance of the subsequent events after 20 December 2013 was a matter for the ET to weigh and evaluate. It was open to the ET to look beneath the text of the e-mails on 23 December 2013 and open to it to conclude that what Odgers really wanted was written confirmation of the approval by the Trust of what Odgers had decided on 20 December 2013. That would be the case even if this Tribunal came to the conclusion that the language of the e-mails does not appear to support that contention. Nor was the evidence of Ms Kelly Angus as compelling as was suggested on behalf of TDA. The ET plainly had that material in mind (because there is a reference to page 36 of the Appeal Bundle) but the weight to be given to it was for the ET to decide. Also the ET was entitled to find Mr Blythin’s failure to intervene at a later stage was of importance because he had an advisory role but did nothing towards getting to the bottom of what was going on. The ET was entitled to regard that as a significant factor.

72. The argument put forward on behalf of the Trust as to the Claimant having suffered no detriment was contrary to high authority submitted Mr Powell. He referred me to the decision of the House of Lords in Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] ICR 337 which establishes that a reasonable sense of grievance can amount to a detriment. Essentially this is a question of fact and it could not be said to be unreasonable for the Claimant to have felt a sense of grievance at not going further in the process.

73. Mr Powell accepted that the parties had not been put on notice that the ET might conclude there had been a further conversation between Ms Spurgin and Mr Blythin on 20 December 2013. He acknowledged that in an ideal world it might have been better if there had been notice of it but he rejected the proposition that an error of law arose as a result. This was an issue that had been in play from the start of proceedings. It had been alleged at paragraph 20 of the ET1 form (see page 168 of the Appeal Bundle) that the application process had been a sham and, at least by implication, this encompassed the assertion that there had been a further telephone conversation.

74. On the interpretation of section 111 EqA Mr Powell adopted the analysis set out at paragraph 40 of the skeleton argument (see page 130 of the Appeal Bundle) of his predecessor, Ms Hogben, that a “basic contravention” might be a breach of section 29(6) EqA, although he did not develop it further in his oral submissions. He submitted that the key to section 111 EqA was the common law concept of vicarious liability. The issue, so far as liability in relation to TDA in terms of section 111 EqA was concerned, was whether, when read as a whole, it could be understood from the Reasons that there had been either a “causing” or “directing” or “inducing” by Mr Blythin of a “basic contravention”. He submitted that the ET had answered this by finding that Mr Blythin had “caused” the Trust to take the Claimant’s application no further. It was also clear, in terms of section 112 EqA, that he was “aiding” or “helping” Odgers to commit a “basic contravention”.

75. Dealing with the detail of the perversity arguments, Mr Powell disputed that the reference to Ms Spurgin at paragraph 10.2 of the Reasons was a mistake and that it was the ET’s intention to refer to Ms Stringer. The evidence of Ms Stringer did not suggest that she had made her own analysis, as opposed to relying on the recommendations made by Odgers. By contrast, the evidence of Ms Spurgin was that she had made the analysis. Therefore, the ET must have intended to say that it was Ms Spurgin who had made the decision. But that was not inconsistent with Ms Stringer having played a part. He argued that such a conclusion derived support from the evidence of Ms Stringer that she had said encouraging things to the Claimant and from the fact that the Claimant’s application appeared to have gone into limbo. The ET were entitled to draw an inference that the Claimant’s application had been “parked” because of the emerging information that she had previously, and successfully, brought race discrimination proceedings against the Trust. It was a sound inference to draw that Ms Stringer had an influence on this halting of the progress of the Claimant’s application and it was a proper further inferential step to conclude the reason why this happened was that Ms Stringer knew the Claimant had brought such proceedings against the Trust.

76. Mr Powell disputed Mr Sweeney’s analysis that the ET had adopted what Mr Sweeney had characterised as “a composite approach” (see above at paragraph 60 of this Judgment). On the contrary, the ET had decided specifically what had been in Ms Stringer’s mind. This was something that they were not only capable of doing but also something they were obliged to do.

77. Nor was there any error law as to the burden of proof. The ET had properly scrutinised the factual background and concluded that there was still a collective memory of the previous proceedings amongst employees still at the Trust in 2013. Moreover, there was evidence that some employees had been upset by the case put forward by the Claimant and did not want her to return. I should not lose sight of the fact, submitted Mr Powell, that Ms Stringer’s evidence had been inconsistent as was apparent from a scrutiny of the notes of her evidence at pages 480 to 484 of the Appeal Bundle. Her evidence had begun badly; she had referred to unfair dismissal proceedings and when challenged, on the basis that she knew very well that there had also been a claim for race discrimination, she accepted that, explaining her omission on the grounds that she had been nervous. This was a lame excuse and the ET was entitled to reach conclusions as a matter of impression from the evidence given.

78. These notes of evidence were also relevant to the issue of serious procedural irregularity. They show that Ms Stringer’s explanation was being challenged in cross-examination and she had had an opportunity to deal with the proposition that she had made the decision.

79. In fact, Ms Stringer had been clear in her evidence that she had made her own decision. There was no reason to think that the ET had rejected her evidence on this point and therefore the right way to read the Reasons and the conclusion of the ET was that it had found Ms Stringer and Ms Spurgin independently reached the same conclusion. The ET’s decision was never based on a “composite approach” and the ET had never conflated the roles of Ms Spurgin and Ms Stringer. Given the finding that they had each made separate decisions that provided a basis for concluding that both Odgers and the Trust were liable. The ET recognised, by reference to section 111 EqA that they were, in a sense, acting in conjunction but nevertheless did not find that one was liable because it was responsible for the acts of the other. The ET had found each liable as an independent actual. Therefore, the approach of the Court of Appeal in CLFIS v Reynolds had no application. If I came to the conclusion that there had been an error of law, then Mr Powell disputed the argument that the case fell within either category of exception identified by Laws LJ in Lincoln College v Jafri. Clearly, I did not have sufficient material to reach my own decision and the case must be remitted for a complete re-hearing before a differently constituted ET.

Discussion

The Law - Serious Procedural Irregularity

80. An appeal lies to this Tribunal on any question of law (see section 21(3) of the Employment Tribunals Act 1996). In the civil jurisdiction, by what is now CPR part 52.21(3)(b), an appeal can be allowed where the decision in question was “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”. There is no equivalent provision in any statute, Rule or Practice Direction relating to this Tribunal but, in my view it cannot be doubted that a serious procedural irregularity will amount to an error of law and, thus, within this jurisdiction provide a basis for an appeal being entertained by this Tribunal. I am also the view that in order for an appeal to succeed on the basis that there has been a serious procedural irregularity this Tribunal must be able to conclude that it would be “unjust” to allow the decision of the Employment Tribunal to stand.

81. No doubt there are many different categories of procedural irregularity. Mr Reade referred me to one identified by Ralph Gibson LJ in Hereford and Worcester County Council v Neale [1986] IRLR 168 at page 175. Similarly, although not absolutely the same, in Secretary of State for Justice v Lown [2016] IRLR 22 this Tribunal considered the issue of procedural irregularity in the context of the ET having upheld a prison officer’s complaint of unfair and wrongful dismissal. The Secretary of State’s appeal was allowed by a division of this Tribunal presided over HHJ Eady QC. Her analysis of the ET’s reasons was that the ET must have concluded the prison governor, who had conduct of the disciplinary proceedings and dismissed the Claimant, had acted in bad faith. No such allegation had been put to him when he gave evidence and she concluded this was a serious procedural irregularity which rendered the ET’s conclusion unsafe. The starting point of her analysis (see paragraph 35 of her judgment) was paragraph 77 of the judgment given by a division of this Tribunal presided over by HHJ Richardson in the case of King v Royal Bank of Canada Europe Ltd [2012] IRLR 280 where he had said:

“77. … it maybe unfair to the opposite party to reach an adverse conclusion on an issue where it has not been raised in cross-examination. If so, the tribunal ought not to reach a conclusion adverse to the opposite party without raising the matter, hearing submissions and if necessary recalling the relevant witness. …”

HHJ Eady’s conclusion is to be found at paragraphs 49 to 51:

“49. Mr Davies further says I need not be troubled by the fact that the case of having some improper motive, of acting in bad faith, was not expressly put to Governor Hawkings; that was not expressly the claimant’s case, as such. Governor Hawking’s approach and reasoning was, however, certainly explored in cross-examination; the ET was entitled to draw the inference it did from those exchanges and conclude that Government Hawkings was not a reliable witness.

50. I am not persuaded that this is correct. It seems to me that this is a case where, as HHJ Richardson allowed in King, the respondent should have been given the proper opportunity to deal with this case; it should have been put. The question is then whether that apparent procedural error vitiates the ET’s judgment?

51. The difficulty is that this finding of bad faith - the apparent rejection of the respondent’s assertion of an honest belief - was central to the reasoning. In my judgment, it does indeed render the conclusion unsafe.”

This approach seems to me to be entirely consistent with what is now CPR Part 52.21(3)(b). Put another way, it seems to me it is not enough to establish there is, firstly, a procedural irregularity, which, secondly, is serious but it must also be established that it “vitiates the judgment” or, in terms of the CPR, that it would be unjust not to allow the appeal.

82. Mr Sweeney and, ultimately, Mr Reade, pressed upon me the existence of a “rule” relating to serious procedural irregularity, “the rule in Browne v Dunn”, breach of which will amount to an error of law having the consequence that the decision below must be overturned thus opening the way for this Tribunal to substitute its own conclusion. Apart from needing to fit that into the guidance on disposal of appeals given by Laws LJ in Lincoln College v Jafri (see above at paragraph 57 of this Judgment), it seems to me their argument begs two questions; firstly, is there any such “rule” in this jurisdiction and, if so what is its nature? I say “in this jurisdiction” because, as I explain below, there clearly is such a “rule” in some other common law jurisdictions. In order to consider those questions it is necessary to look at some of the authorities.

83. The natural starting point is Browne v Dunn [1893] 6 R 67, a judgment of the House of Lords. It seems clear from the speeches that House believed it was expressing what were already well established common law principles at the time the case was decided. The case is referred to by Jacob LJ in his judgment in the Court of Appeal decision of Markem Corporation v Zipher Ltd [2005] EWCA Civ 267. He introduced the case at paragraph 55 by referring to the fact that it has only ever been reported in an obscure (and it turns out short lived) set of law reports, which appeared to him to be inaccessible. So he was obliged to refer to an analysis of it in an Australian case which he quoted extensively in paragraphs 55 and 60 of his judgment. I will need to come to these in due course, but there has been such a rapid expansion of legal information resources via the internet since Jacob LJ gave his judgment 12 years ago that it is now easier to get access to the report. Indeed there is now a website devoted to Browne v Dunn, from which a facsimile of the report at 6 R 67 may be downloaded. As a result I have been able to undertake my own analysis of the case.

84. The factual matrix of the case would be recognised today as an anti-social behaviour neighbour dispute with a range of allegations and counter-allegations being made by the parties against each other. Mr Dunn was a solicitor, who said that in August 1891 he had drawn up a form of authority, which he had presented to a number of people who were near neighbours in the Vale of Health in Hampstead and asked them to sign to indicate that he was to act on their behalf at the local police court the following day to seek an order from the magistrates that Mr Browne be bound over to keep the peace. Eight residents of the Vale signed the document. Before the bench on the following day was a summons taken out by Mr Browne, complaining of assault, and a cross-summons taken out by the resident accused of assault by Mr Browne alleging abusive language against him. Although Mr Dunn referred the bench to his application, the magistrates postponed consideration of Mr Dunn’s application until after they had heard and decided the summons and the cross-summons. In the event, after evidence was heard, Mr Browne was bound over to keep the peace. Mr Dunn’s application was never heard.

85. Later Mr Browne learned that the form of authority had been circulated and concluded that it must have been read by the signatories. He took the view that its content defamed him and the libel had been published by the document being shown to the signatories. So he brought proceedings in the tort of defamation. The matter was tried before a Judge and jury. Mr Browne’s case at trial was that the document was a sham drawn up by Mr Dunn, who was not friendly towards him and had manufactured the document to injure Mr Browne and cause him annoyance. One of the signatories gave evidence for Mr Browne. Apart from another, who had died in the meantime, the others gave evidence for Mr Dunn to the effect that they had signed the document to signify that they were employing him. Two were not cross-examined about the substance of their disagreements with Mr Browne. It was not put to any of them that the document was a sham and that they had not signed it. Somewhat surprisingly the jury found in favour of Mr Browne and awarded him damages of £20.00.

86. Mr Dunn appealed successfully to the Court of Appeal, which set aside the jury’s verdict. In turn Mr Browne appealed to the House of Lords on the basis that the jury had been entitled to find that the document was a sham and that the Court of Appeal should not have interfered with the jury’s verdict. The Respondent was not called on and the following day each member of the Committee delivered what appears from the report to have been an oral judgment dismissing the appeal. They all agreed but it is necessary to look beneath their loquacious and expansive late nineteenth century language to see what the case really decided.

87. In general terms three sets of issues were considered by the House. One group of issues related to technical aspects of the law of defamation such as malice, publication and qualified privilege. Whether the form of authority was genuine was crucial to that set of issues because if it was, and not the sham for which the Appellant contended, then it was accepted that he could not succeed. A second issue was whether the appeal was taking a fresh point not argued below. The third issue was whether on the state of the evidence the jury could have properly returned a verdict in favour of Mr Browne.

88. What might be described as the leading judgment was given by the Lord Chancellor, Lord Herschell. There is no easy way to synopsise his speech and so it is necessary to quote a passage at pages 70 and 71 in full:

“Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, while he is in the box, to give him an opportunity of making an explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of the case; but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards suggest that he is not a witness of truth, I mean upon a point which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to impeached, is so manifest, that is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

…

Now my Lords, as regards all these persons, except the three whom I will deal with presently, the case is all one way. Having regard to the conduct of the case, it was not open to the learned counsel to ask the jury to disbelieve all their stories, and to come to the conclusion that nothing of the kind has passed. If that is so, there is an end of the case so far as it rests upon the whole of this transaction being a sham, and we start with this, that, as regards all these persons except three, it was a genuine transaction, because their solicitor was really asked to act by people who really felt themselves aggrieved.”

In the rest of his speech Lord Herschell dealt with the technical arguments relating to privilege and malice and with the position of the other three witnesses, none of which is relevant either to identifying the so-called rule or to the instant appeal. But the above passage is relevant to both. It deals with both the procedure to be followed and the consequence of failure to follow that procedure, namely that if the point is not put then the evidence is unchallenged. Undoubtedly it is this passage, which has become “the Rule in Browne v Dunn”.

89. Other well known and distinguished nineteenth century jurists “concurred”. Lord Halsbury at page 75 focussed on what might now be called “raising a new point” and at pages 76 to 78 agreed with Lord Herschell’s conclusion about the effect of the failure to put the case concluding in these terms:

“… Under those circumstance what question of fact remains? What is there now for the jury after that? If Mr Willis admits before the jury - as I say, by absence of cross-examination, he does admit - that these statements are true, what is there for the jury? It is impossible, as it seems to me, therefore, to dispute for a moment that, in the manner in which this cause was conducted, that absolutely concluded the question.”

90. Unfortunately, Lord Bowen’s speech on the issue with which I am concerned was only summarised by the reporter at pages 79 to 80; the pertinent part of the summary being “it was impossible to deny that there had been a real and genuine employment of the defendant; and that on the issue so presented to the jury judgment must be entered for the defendant”. The rest of his speech deals with technical matters relating to the tort of defamation.

91. Perhaps, to us, over a century later, the least well known member of the committee was Lord Morris, although he was distinguished enough at the time, having been the Lord Chief Justice of the King’s Bench for Ireland before being appointed a Lord of Appeal in Ordinary. Part of his speech, however, was considered significant enough to be summarised in the head note by the law reporter and I, too, think it significant enough to quote the passage in full (see page 79)

“My Lords, there is another point upon which I would wish to guard myself, namely, with respect to laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of the opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit.”

92. Despite the Victorian phraseology of the prose, to my mind this has a modern feel about it. At paragraph 12-12 in Chapter 12 of the 18th edition of Phipson on Evidence, which has a chapter heading “Rules of Evidence Relating to the Course of a Trial: Examination of Witnesses” and a paragraph subheading “Requirement to Challenge Evidence” the following appears:

“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases as it does criminal. In general the CPR does not alter the position.

This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.

However, the rule is not an inflexible one. For example, if there is a time-limit imposed by the judge in cross-examination it may not be practicable to cross-examine on every minor point, particularly where a lengthy witness statement has been served and treated as evidence-in-chief. Thus, in practice there is bound to be at least some relaxation of the rule.”

The editors cite Browne v Dunn, Markem v Zipher and the Australian case of Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR 607 as well as other cases as authority for the above propositions. Having considered the other authorities, I do not think it is necessary for me to refer to them but it is necessary to look at Markem v Cipher and, by doing so, consider also Allied Pastoral Holdings, which is referred to in the judgment of Jacob LJ.

93. Markem v Cipher concerned patent entitlement and its complex factual matrix is irrelevant for present purposes. Under a general subheading, “Fairness - the rule in Browne v Dunn”, which precedes paragraph 50 of his judgment, Jacob LJ identified as one of the grounds of appeal what he described as “procedural unfairness” at paragraphs 56 of his judgment then in paragraphs 57 to 59 he discusses Browne v Dunn through the medium of extensive citation from the judgment of Hunt J in Allied Pastoral Holdings, which reproduces passages from that judgment, summarises the decision and then sets out passages from the then current editions of Cross on Evidence and Phipson on Evidence. I think that in view of my own summary above it is unnecessary to repeat this.

94. It is worth, however, setting out Hunt J’s conclusion from paragraph 25 of his judgment, which was in these terms:

“I remain of the opinion that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.”

Jacob LJ found it unnecessary “to explore the limits of the rule in Browne v Dunn” because he thought the above proposition stated above obviously applied to Markem v Cipher (see paragraph 61 of his judgment).

95. Some common law jurisdictions have apparently embraced Browne v Dunn with very considerable enthusiasm. But the enthusiasm is by no means universal; Justice Gilles Renaud, then a Judge of the High Court of Ontario, in an academic article in 6 Gonzaga Journal of International Law (2002/2003), expressed his frustration in this way:

“In almost each case, counsel for both sides will refer me to the Rule in Browne v Dunn leading me to ask the question, is there a more misunderstood [rule] of evidence/procedure/trial tactics than this Rule? Is there a judgment that is more obscure and yet cited more often?”

96. I have considerable sympathy with this point of view and I entirely agree that the “rule” has a different character according to what perspective one adopts. In relation to what the consequences of not putting the case might be (i.e. that the evidence being unchallenged is, therefore, unchallengeable), it seems to me that if it is a rule at all it is most probably a rule of evidence. Looked at another way, it is a matter of professional conduct. By the Bar Standards Board Code of Conduct rule C7:

“Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

… 2 - you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination.”

97. But to my mind neither the evidential or ethical consequences, of themselves, will necessarily amount to a serious procedural irregularity. In my judgment, such an irregularity can only arise as a result of the conduct of the Tribunal. In Deepak Fertilisers & Petrochemical Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396 at paragraphs 49 of his judgment Latham LJ set out what he described as a “general rule in adversarial proceedings” referring to a passage in the 15th edition of “Phipson on Evidence” (which is a passage related to criminal cases - the equivalent passage is now at paragraph 12-35 of the 18th edition). The passage from Phipson included the following caveat, obviously derived in part from the speech of Lord Morris in Browne v Dunn (see above):

“Failure to cross-examine will not, however, always amount to acceptance of the witness’s testimony, if for example the witness has had notice to the contrary beforehand or the story itself is of an incredible or romancing nature.”

98. Then at paragraph 50 Latham LJ continued:

“The caveat in the last sentence that I have quoted, is important particularly in the context of the Civil Procedure Rules in which, by Part 32 r.1(3) the court is given a power to limit cross-examination. Nonetheless, the general rule remains a valid rule of good practice and fairness. The judge of fact is, however, in a different position from the protagonists. So long as the matter remains clearly in issue, it is the judge’s task to determine the facts on which the issue is to be decided. However it seems to me that where, as in the present case, an issue has been identified, but then counsel asked no questions, the judge should be slow to conclude that it remains an issue which has to be determined on the basis of an assessment of reliability or credibility without enquiry of the parties as to their position. The judge should be particularly cautious of doing so if he or she has not given any indication of concern about the evidence so as to alert the witness or counsel acting on the side calling the witness, to the fact that it may be that further explanation should be given in relation to the issue in question.”

99. So it is the conduct of the Tribunal (in the above scenario that conduct was a failure by the Tribunal to indicate concern that the point had not been put) upon which the procedural irregularity rests and not on the conduct of the parties or the nature of their evidence. In Lown (see above at paragraph 83 of this Judgment) the conduct of the Tribunal was drawing an inference of bad faith on the part of the Governor without that matter having been put to him and the opportunity to put it having been given or even required by the Tribunal. All that said, it will not usually be a fair procedure for a Tribunal to reach conclusions about a factual scenario if that factual scenario has not been put. If conclusions of dishonesty are to be reached, it will usually be unfair to reach them unless the person likely to be condemned has had an opportunity to deal with them. If a Tribunal is minded to reach a conclusion that is purely inferential and such a conclusion is neither obvious nor has it been advertised in that form at any point in the proceedings, then the Tribunal must give the parties an opportunity to address the matter.

100. Sometimes the error of the Tribunal will be one of reaching a conclusion, which cannot be supported by, or is contradicted by, the evidence. This seems to me to be one way of characterising the underlying error in Browne v Dunn. The evidence of the neighbours not having been challenged, the jury had no evidence upon which they could have reached the conclusion they did. Alternatively, the error might be that of reaching a perverse conclusion; one can also look at Browne v Dunn in that way. Sometimes the error will be that of inadequate reasoning, which is the way Underhill LJ characterised the error in The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658 at paragraphs 58 to 60 of his judgment. But these are all different species of errors of law. They might also be serious procedural irregularities but they are not only serious procedural irregularities.

101. Also it seems to me important to recognise that, in this jurisdiction at least, the so-called rule in Browne v Dunn, if it is a “rule” at all, is most naturally both a rule of evidence and a rule of professional conduct but, in so far, as it is a “rule of procedure” it is flexible and subject to exception. The fact that evidence has not been challenged specifically will not always preclude a Tribunal from reaching a particular conclusion. This was recognised by Lord Morris in his speech over a century ago and, nowadays, as Latham LJ pointed out in Deepak, the evidential process is subject, in the civil jurisdiction to control of the court imposed by CPR Part 32.1 and the combination of Rules 41 and 45 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 creates in the Employment Tribunal roughly equivalent powers of controlling the hearing.

102. I recognise that the editors of Phipson suggest that the “rule” is not altered by the CPR. But it seems to me some recognition of the modern context is necessary. Lord Herschell may have believed it was better to have too much cross-examination rather than too little but we are now in an age where that kind of expansive luxury has to be avoided in the interest of fulfilling the overriding objective. When it is clear from the variety of written material that nowadays attends a civil trial or a hearing in the Employment Tribunal what the issues in a particular case are, it may not be necessary for each matter to be expressly put. Whether it would be erroneous for the Tribunal to reach a particular conclusion in the absence of any particular matter being put will depend on the circumstances of the case. The extent to which there has been procedural unfairness is not necessarily a matter of simply scrutinising what actually was put. It will involve a consideration of all of the evidence, how the matter stood at the end of all of the evidence and what the parties and the Tribunal should have recognised from that material was still in issue in the case. I do not accept that every failure to put every particular aspect of a case amounts to a serious procedural failure. The context may suggest that looked at overall it was perfectly fair, everybody knew where they were heading, what was at issue, what the case being put forward was and what the answer to it should be.

The Law - Types of Liability Under the Equality Act

103. The scheme of the EqA is to set out “Key Concepts” in Chapter 1 (“Protected Characteristics”) and in Chapter 2 (“Prohibited Conduct”) of Part 2. The main part of the description of “Prohibited Conduct” is taken up with “Discrimination”, various types of which are set out, and then section 27 describes the behaviour known as “Victimisation” under the subheading of “Other prohibited conduct”. Then Parts 3 (“Services and public functions”), 4 (“Premises”), 5 (“Work”), 6 (“Education”) and 7 (“Associations”) define various areas and activities in which “Prohibited Conduct” is unlawful. The Employment Tribunal has jurisdiction in respect of only some of these; Part 3 is not within its jurisdiction.

104. Part 8 is sub-headed “Prohibited Conduct: Ancillary” and comprises sections 108 to 112 EqA. In this case the ET referred itself to sections 109, 111 and 112 EqA. Section 109 deals with “Liability of employers and principals” and enacts the well know common law concepts that an employer is vicariously liable for the acts of an employee done “within the course of employment” (section 109(1)) and that what an agent does “with the authority of the principal” will be “treated as also done by the principal” (section 109(2)). The “principal’s knowledge or approval” of the thing done by the agent “does not matter” (section 109(3)). The contentious issues in this case relate to the relationship of principal and agent. Section 110, to which the ET does not refer, renders the agent liable in certain circumstances. It seems to me, therefore, that both agent and principal may be primarily liable in respect of the agent’s act.

105. Section 111(1), (2) and (3) EqA creates three types of (“Prohibited Conduct”) arising where one person (“A”) “instructs” another (“B”) to do, “causes” another to do and “induces” another to do, something in relation to a third-party (“C”) which amounts to “a basic contravention” of the EqA (as defined in section 111(1)). Either B or C can bring proceedings against A, providing a detriment has been suffered (see section 111(5)). But by section 111(7) the relationship between A and B must be such “that A is in a position to commit a basic contravention in relation to B”. The definition of “a basic contravention” in this section includes a contravention of section 112(1). This has the section heading “Aiding contraventions” but the concept in subsection (1) is that “A” must not “knowingly help” “B” to commit “a basic contravention”, which for the purposes of this section is defined as including a contravention of section 111(1).

106. I also think it is important to recognise that both sections 111 and 112 might be said to create a primary liability. It does not matter whether or not the “basic contravention” actually occurs for the purposes of section 111 (see section 111(6)) and although there is no parallel provision in section 112 it seems to me prohibited conduct will occur in relation to the instruction etc to carry out the basic contravention, irrespective as to whether the basic contravention is actually carried out. These provisions are not easy to understand in the abstract and, for present purposes, the question is how do they apply to the instant appeal?

Conclusions on the Appeals

What did the ET find?

107. In view of the length of this Judgment a degree of recapitulation might not go amiss at this point. It was accepted and, on that basis the ET found, that Odgers was an “Employment-service provider” by virtue of section 56(2)(d) EqA (see paragraph 9.5 of the Reasons page 24 of the Appeal Bundle). There is no appeal against that.

108. In the course of explaining Mr Reade’s submissions I set out above at paragraph 52 of this Judgment paragraph 10.12 of the Reasons, which deals with both the Trust and Odgers, although mainly with the latter. There the ET finds that the making of a recommendation that the Claimant’s application should proceed no further amounted to a detriment within the meaning of section 27(1) EqA and within the meaning of section 55(5)(d) EqA. Because the ET had rejected the Claimant’s case that TDA was an “Employment-service provider” (see also paragraph 9.5) only Odgers could have committed a contravention of section 55 and since section 27 defines the “Prohibited conduct” and not the contravention, the latter must be in relation to Part 5 and section 55 and so I interpret the Reasons as finding that Odgers was in breach of that section.

109. The next sentence of paragraph 10.12 reads:

“We also find that the third respondent “caused” (section 111(2)) or at least knowingly helped (section 112(1)) the first respondent to commit a basic contravention under section 39(1) of the Act.”

Mr Reade submitted that this reveals some very loose thinking on the part of the ET and I will need to come back to it when considering the TDA appeal but because there is no appeal by Odgers at this stage its real significance is that it appears to amount to a finding that the Trust had contravened section 39(1) EqA.

110. The ET found that Ms Stringer was acting as an agent of the Trust (see paragraph 10.10 of the Reasons at page 31 of the Appeal Bundle and paragraph 10.13 of the Reasons at page 33 of the Appeal Bundle - reproduced above at paragraph 34 of this Judgment). The last sentence is a finding that the Trust had “committed an act of victimisation”. By combining the sentence from paragraph 10.12 set out above at paragraph 109 of this Judgment with the last sentence of paragraph 10.13 I have reached the conclusion that this must amount to a finding that the Trust has acted in contravention of section 39 EqA and most probably section 39(3)(a). Something explicit along those lines in the Reasons would have been helpful but I am confident that is what it must amount to.

111. The ET’s finding in relation to TDA is set out at in the lengthy paragraph 10.14 of the Reasons, part of which (taken from page 35 of the Appeal Bundle) I have set out above at paragraph 35 of this Judgment and another part of which (taken from page 36 of the Appeal Bundle) I have set out in paragraph of 36 this Judgment. In the first of those passages the ET finds that Mr Blythin was not acting as an agent of the Trust but as an employee of the TDA. After making a series of inferential findings in the passage quoted at paragraph 36 of this Judgment the ET reaches the conclusion set out in the last sentence that Mr Blythin had “played a material part in the decision to exclude the claimant with the relevant knowledge”. It is that conclusion which must lead to the ET’s judgment the TDA had victimised the Claimant.

TDA’s Appeal

112. Essentially Mr Reade’s extensive submissions come down to three propositions. Firstly, in concluding that Mr Blythin had a further communication with Odgers (either with Ms Spurgin or with Ms McDermottroe or both) on 20 December 2013, the ET had reached a conclusion not open to it on the evidence and/or it was a conclusion that no reasonable Tribunal properly directing itself on the evidence could have reached. I have set out Mr Reade’s analysis above at paragraphs 40 to 46 of this Judgment and do not propose to repeat it here. It is a powerful critique of the ET’s reasoning and conclusions. Mr Powell submitted that Mr Reade’s argument on the appeal was nothing more than an attempt to re-argue the case. I do not accept that submission. It does not seem to me that neither the note at page 580 of the Appeal Bundle nor the note at page 582 the Appeal Bundle lead to the inference that there must have been a second conversation. I accept that Mr Reade is correct in his submission (see above at paragraph 41 of this Judgment) that the notes are entirely consistent with the contents of the e-mail that Mr Blythin had sent to Ms Spurgin at 9.01 on 20 December 2013 and with the other background facts set out above at paragraph 42 of this Judgment. I agree with him that these primary facts point against a second conversation. Accordingly, I have reached the conclusion there is no primary fact from which the inference of a second conversation could have been drawn and I accept his submission that the ET erred in law by reaching that inferential conclusion.

113. Secondly, Mr Reade submits that to reach this inferential finding of a second conversation without giving TDA the opportunity (not only by requiring the matter to be put to Mr Blythin but also to Ms Spurgin and/or Ms McDermottroe) to deal with the proposition was a serious procedural irregularity. Whilst in my discussion of “the rule in Browne v Dunn” I have expressed reservations both as to the nature and scope of the concept of serious procedural irregularity, it seems to me in the present context that significant unfairness has resulted to TDA because of that lack of opportunity.

114. I do not accept Mr Powell’s submissions that the finding made by the ET at the end of paragraph 10.14 means that there has been no serious procedural irregularity or makes serious procedural irregularity irrelevant because the ET did not believe Mr Blythin. For convenience, I set out the passage again:

“… It has been claimed in submissions that it was never put to PB that he was aware that she had done a protected act in cross-examination. That is in fact not correct. Our notes record that it was put in cross-examination but that he denied it. We reject this denial.”

115. If I understood him correctly, Mr Powell’s argument was that this demonstrates there had been an opportunity to put matters to Mr Blythin and, that in any event, given that he was disbelieved, the fact that other matters might not have been put could not result in any difference in outcome because the ET essentially decided the issues on the question of credibility. It seems to me the above passage, of itself, raises a question of adequacy of reasoning. Whilst I accept that a finding of lack of credibility might be different in character to the error of the Judge at first instance in the civil case of Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (i.e. simply saying without further explanation that the evidence of one expert was preferred to the evidence of another), it seems to me necessary to give some explanation as to the conclusion reached even though it relates to credibility. But, putting that to one side, there is a much more fundamental difficulty about Mr Powell’s argument. The above passage deals with one aspect of the procedure but it does not deal with the issue raised by Mr Reade. Nor can it be an answer to an allegation of serious procedural irregularity that the ET has found a witness lacks credibility. This begs the question. Accordingly, I reject Mr Powell’s submission and I accept not only that there has been a serious procedural irregularity but that it amounted to an error of law.

116. Thirdly, and, as it seems to me, alternatively, Mr Reade submitted that even accepting the findings made by ET were correct, as a matter of law the findings that Mr Blythin had been “in a position to cause or induce” or had been “participating” were insufficient to render TDA liable under section 111 EqA and likewise in relation to section 112 EqA. He also argued that in terms of section 111(7) EqA, TDA was not “in a position to commit a basic contravention” in relation to Odgers. I reject Mr Powell’s submission that “a basic contravention” might relate to section 29(6) EqA. It lies outside the scope of the jurisdiction of the ET and not surprisingly has never been under consideration in the case.

117. I reject Mr Reade’s argument that section 111(7) EqA means that section cannot apply as between corporations. I see no reason why one company cannot commit “a basic contravention” against another. In particular, I can see no reason why one corporation cannot knowingly help another to commit “a basic contravention” (and to my mind it is significant in this context that section 112 is within the definition of “a basic contravention” for the purposes of section 111).

118. But I agree with Mr Reade that the factual findings made by the ET do not amount to breaches of section 111 or section 112 EqA so far as TDA is concerned. Putting it another way there must be evidence of instruction or causation or inducement for there to be a breach of section 111 EqA. That Mr Blythin was in a position to instruct cause or induce “a basic contravention” is not enough to establish liability. The evidence must show that he behaved in that way not that he had the potential to do so. Likewise concluding that “he did participate in the decision” (see paragraph 10.14 at page 35 of the Appeal Bundle) or that he was “a party to a discussion” (see paragraph 10.14 at page 37 of the Appeal Bundle) or that he “played a material part in the decision” (see also paragraph 10.14 page 37 of the Appeal Bundle) is in my judgment not, without more, to be equated with an instruction, causation or inducement. Nor do any of these findings amount to giving help knowingly. Although this matter really concerns the Trust I do not think that the inference drawn by the ET that Odgers wished to have written approval from Mr Blythin, even if sound, does anything more than illustrate that Odgers wished to have support from Mr Blythin. To my mind this is looking through the wrong end of the telescope. The question is not whether Odgers wished to be supported but whether Mr Blythin was intentionally lending support. In my view the evidence falls short of this. Therefore, in concluding that the findings discussed above were sufficient to render TDA liable under section 111 or section 112 EqA the ET misdirected itself as to what had to be proved before breaches of those sections could arise.

119. I have found the question of disposal in the TDA appeal to be one of considerable difficulty. In the course of argument, I drew Mr Reade’s attention to the judgment of Laws LJ in Lincoln College v Jafri (see above at paragraph 57 of this Judgment). Insofar as it was submitted that a serious procedural irregularity or a misdirection as the law could lead this Tribunal to taking the exceptional course, as identified in paragraph 21 of the judgment of Laws LJ, of itself being able to conclude what the answer must be, I have some reservations as to whether that would be the right course, notwithstanding the fact that this is an old case in which a final resolution is very desirable.

120. It seems to me, however, that Mr Reade is correct in his submission (see also paragraph 57 above) that if the finding of a second conversation on 20 December 2013 is erroneous because it is unsupported either by primary facts or inferences that could be drawn from primary facts, then the supporting pillar of the ET’s reasoning has collapsed. If there is no such evidence then the conclusions are untenable and, that being so, it seems to me that I am in as good a position as the ET to reach a conclusion on their findings. On the basis that there was no further contact between Mr Blythin and Odgers on 20 December 2013 the conclusion must be that his conduct, as an employee of TDA, did not place it in breach of either section 111 or section 112 either in relation to Odgers or, for that matter, in relation to the Trust (although I do not understand the ET to have concluded that was a basis for the liability of TDA). Therefore, the conclusion that TDA had victimised the Claimant is without evidential support and the appeal should be allowed and the conclusion that the claim against TDA should be dismissed substituted for the judgment of the ET.

The Trust’s Appeal

121. Mr Sweeney’s first submission (set out in somewhat greater detail above at paragraph 60 of this Judgment) was that the Claimant had not suffered a detriment and therefore there could have been no breach of section 39(3) EqA. The ET have found that, in any event, the Claimant would only have had an even chance of an interview, and no chance of appointment. But the finding made by the ET at paragraph 10.7 of the Reasons that the Claimant never met the essential criteria for the post (see above at paragraph 27 of this Judgment) meant that she suffered no detriment in terms of loss. I have no hesitation in rejecting this submission and accepting Mr Powell’s argument that the threshold for “detriment” is a low one and that it was open on the evidence for the ET to find that the kind of disappointment associated with not being taken further in the appointment process amounted to a reasonable sense of grievance and thus fall within the definition of detriment discussed by the House of Lords in Shamoon.

122. I think, however, Mr Sweeney’s submission that the ET erred in law in finding that Ms Stringer had supported the recommendation as to who should go forward to a telephone interview in any way that could render the Trust liable under the EqA requires much more careful consideration. The passage complained of is at paragraph 10.13 of the Reasons (set out above at paragraph 34 of this Judgment). Mr Sweeney’s argument comprised several strands. Firstly, it was submitted there was no evidence that the Trust either approved or adopted the “tainted” element of the Odgers recommendation. Secondly, and intimately connected with that, it was submitted even if the finding as to Ms Stringer’s knowledge of the previous race discrimination proceedings was open to the ET, it is a non-sequitur to reason that because she knew about that she either “endorsed” that part of the reasoning Odgers, thus making the Trust liable either under section 111 or section 112 EqA or she approved the recommendation, thus making her own decision about the Claimant not proceeding further and thus, through her agency, rendering the Trust liable under section 39(3) EqA. Thirdly, it was submitted that the ET had erred by attempting to resolve the difficulties inherent in the alternative approach and the lack of evidence through the creation of what Mr Sweeney called “the composite approach”. Fourthly, Mr Sweeney submitted that the ET had erred in relation to shifting the burden of proof. Fifthly, he placed even greater emphasis on serious procedural irregularity. He embraced “the rule in Browne v Dunn” with very considerable enthusiasm, arguing it had not been put properly to Ms Stringer that she was motivated to eliminate the Claimant from further consideration because of the previous race discrimination proceedings and, in short, she was not telling the truth.

123. There is a very considerable overlap between the above propositions and they cover a great deal of ground. I agree with Mr Sweeney that the concept of “endorsement” of a “tainted” recommendation seems a dubious route to liability without an explicit finding that Ms Stringer not only knew that part of the reason why Odgers had made the recommendation was because the Claimant had previously made a race discrimination claim against the Trust but also approved the recommendation on that ground.

124. As set out above at paragraph 110 of this Judgment, I have reached the conclusion that the ET’s finding of liability against the Trust was that of a contravention of section 39(3) EqA (i.e. victimisation in the context of arrangements made for appointment). It is trite law that the definition of victimisation in section 27(1) EqA means causation is an essential part of the concept of victimisation.

125. The alternative route to liability on the part of the Trust might have been, through sections 111 and 112 EqA, that of “basic contraventions” by Odgers but in paragraph 10.12 of the Reasons (see above at paragraphs 109 and 110 of this Judgment) the ET put it the other way round (i.e. that it was Odgers who had either caused or knowingly helped the basic contravention of the Trust under section 39 EqA) and I have reached the conclusion that the only finding made against the Trust was of a breach of section 39. Therefore, it was necessary for the evidence to demonstrate that the Trust, via the agency of Ms Stringer, had decided that the Claimant’s application should go no further because she had brought proceedings complaining of race discrimination against the Trust in the past.

126. Paragraph 10.12 of the Reasons (set out above at paragraph 52 of this Judgment) was at the forefront of Mr Sweeney’s argument. I do not accept the analysis put forward by him that there is a typographical error in the second sentence, which has transposed Ms Spurgin for Ms Stringer. I think Mr Powell is right when he says that the ET intended to refer to Ms Spurgin. This seems to me to be supported by the sequence in which the ET deals with each Respondent. Paragraph 10.12 of the Reasons is intended to deal with Odgers and paragraph 10.13 with the Trust. The first sentence of the latter - “[w]e next turn to the position of the first respondent” - confirms paragraph 10.12 had dealt with Odgers and that paragraph 10.13 was to deal with the Trust. On that basis it is quite logical it was Ms Spurgin and not Ms Stringer under discussion in paragraph 10.12.

127. Accordingly, it seems to me paragraph 10.13 (set out above at paragraph 34 of this Judgment) contains the reasoning that supports the judgment of the ET that the Trust had victimised the Claimant. I accept Mr Sweeney’s analysis that the recommendation referred to in the fourth sentence of paragraph 10.13 must be the recommendation made by Ms Spurgin as referred to in paragraph 10.12. This recommendation was found by the ET to be “tainted by knowledge of her protected act”. This is a difficult phrase and a rather elaborate one to explain what was going on. I believe it to be common ground that it was Odgers who were responsible for the phraseology of the entry relating to the Claimant in what has been called “the long list report”. If what the ET meant was Ms Stringer, on reading the entry, would inevitably have recognised that what was being referred to by Odgers was a history of race discrimination proceedings against the Trust, given the finding Ms Stringer already knew that history, that would seem to me to be a reasonable inference to draw. What the ET then find is that Ms Stringer “endorsed” that recommendation and it was a reasonable inference that she might have done so “because of the tainted reasoning in the absence of a non discriminatory explanation from her”.

128. At this point Mr Sweeney submitted the ET had fallen into the error of concluding that an explanation was called for when the primary facts did not call for an explanation. I have reached the conclusion that this submission cannot be accepted. It seems to me the primary facts were these. A recommendation had been made that the Claimant was not to proceed further. It looked as though she did not fulfil the criteria. She had been employed by the Trust before. She had brought proceedings against the Trust. Ms Stringer knew that those proceedings included a complaint of race discrimination. To my mind the issue is whether the ET made any error when deciding that an inference might be drawn that at least part of the reason why Ms Stringer did not intervene in the recommendation process was the fact, known to Ms Stringer, that the Claimant had previously brought race discrimination proceedings against the Trust?

129. I do not think that the ET did make any error at this point. The ET did not at that stage need to reach a final conclusion as to whether such an inference could be drawn. There only needed to be a real, as opposed to a fanciful, possibility that such an inference might be drawn from the known primary facts. Given Ms Stringer’s knowledge of the previous proceedings it seems to me that this was a real possibility and that the ET made no error of law in concluding that the evidence made it necessary for the Trust to give an explanation.

130. Ms Stringer’s explanation was that the previous history had nothing to do with her not interfering with the recommendation and, thus, in effect, accepting it. She was content with the recommendation and agreed that the Claimant should go no further in the process because she did not fulfil the criteria. This was rejected by the ET in a very cursory fashion in the pen-penultimate sentence of paragraph 10.13 - “[w]e reject AS’s non discriminatory explanation”. Mr Sweeney submitted that this was not an adequately reasoned part of the Reasons and I agree. I will return to that in a moment after I have addressed other aspects of Mr Sweeney’s submissions.

131. Mr Sweeney criticised the concept of “endorsement” as amounting to an artificial construct, which he characterised as a “composite approach”. As I understand it, he meant by this that if, as found, the recommendation was that of Ms Spurgin and Ms Stringer had done nothing more than not contradict or interfere with it, the ET must be imputing Ms Spurgin’s motivation to Ms Stringer. Indeed, he characterised the error as one of conflating Ms Spurgin’s motivation with that of Ms Stringer or in some way imposing Ms Spurgin’s motivation upon Ms Stringer. To my mind the difficulty with this submission is that it ignores one factor, namely that the ET found Ms Stringer, by “endorsing” the recommendation, made it her own act, and it underplays another.

132. It underplays the role of Ms Stringer. In fact, I see no difficulty about an act of victimisation being passive or, for that matter, being an omission to act as opposed to a positive act but in the instant case it seems to me that the conduct was not that of omission nor of passivity. This was the Trust’s appointment. It had engaged the services of Odgers, which had made recommendations in the long list report. The acceptance of the recommendations may have been somewhat low-key but it seems to me to be implicit that the Trust had to accept or reject the recommendations. This process of acceptance is presumably what the ET meant by “endorsement” and when the Trust accepted the recommendation to put some candidates, but not the Claimant, through to a telephone interview it was, in the words of section 39(3)(a) EqA making “arrangements … for deciding to whom to offer employment”.

133. The question for the ET, at that stage, was whether the Trust had proved that it accepted Odger’s recommendation for reasons other than Claimant having brought race discrimination proceedings against it. As I accepted above at paragraph 130 of this Judgment it seems to me that the ET did not give an adequately reasoned explanation of its conclusion that the Trust had not proved a non-discriminatory explanation. In my judgment, it is not an adequate explanation either to say simply that the non-discriminatory explanation is rejected or to add, as the ET does in the penultimate sentence of paragraph 10.13, that it is it is satisfied that Ms Stringer’s “knowledge of the protected act played a significant part in her decision”.

134. I have considered very carefully Mr Powell’s submission that the ET had not believed Ms Stringer. The ET had expressed “concern” about the credibility of the Respondents’ witnesses (see paragraph 10.5 of the Reasons). Also, although the ET had not referred to it specifically in the Reasons, there are objective reasons to think her evidence had not gone well (see his submission summarised above at paragraph 77 of this Judgment). But, powerful though these points are, in the end they do no more than reinforce the need for an adequately reasoned decision. If the ET found these points compelling as a basis upon which Ms Stringer’s evidence was to be rejected, then in my view the ET was obliged to say so.

135. This part of Mr Sweeney’s submissions dovetailed into his submission that there had been a serious procedural irregularity. He relied upon the necessity for a positive case to have been put to Ms Stringer that she was not telling the truth about her reason for accepting the recommendations of Odgers. Mr Powell submitted that scrutiny of the Notes of Evidence (he referred to pages 480 to 484 the Appeal Bundle - see above at paragraphs 77 and 78 of this Judgment) showed that there had been an adequate opportunity for Ms Stringer to deal with the proposition that she was not telling the truth about her motivation. It is true that there is a reference in the Notes to Ms Stringer answering that she was telling the truth but I can find nothing there that makes it clear she was ever given the opportunity to deal with the proposition that her true motivation for accepting the recommendation that the Claimant should not proceed further was because the Claimant had brought the race discrimination proceedings.

136. As I have explained above I do not think there is any inflexible rule that a serious procedural error will invariably arise when a particular issue is not explicitly put and therefore the witness does not have a specific opportunity to deal with it. I think there is much in Mr Powell’s submission that it was quite clear in documentary statements about the case, including the ET1 form, that the Claimant’s position was she had been “switched off” by the Trust because she had previously brought race discrimination proceedings against it. Also, there is considerable force in his argument that as the case developed it must have been obvious that the choice for the ET was between accepting Ms Stringer’s version as to why she accepted the recommendation and rejecting it.

137. Therefore, on the question of serious procedural irregularity, I think that the Trust’s appeal lies very close to the borderline between a procedural irregularity resulting in such unfairness that an error of law has occurred and one which is not of that magnitude. But it also seems to me that this ground of appeal is closely related to the inadequacy of reasoning ground in the sense that the summary rejection of Ms Stringer’s evidence might well be a manifestation of the fact that she did not have an adequate opportunity to deal with the proposition that she was really motivated to accept the recommendation because the Claimant had previously brought race discrimination proceedings against the Trust. On balance, I have reached the conclusion that in the particular circumstances of this case the ET ought to have ensured that Ms Stringer had the opportunity to explain, if she could, why that was not her motivation. Therefore, I will allow the appeal on both inadequacy of reasoning and serious procedural irregularity.

138. I cannot, however, accede to Mr Sweeney’s submission that I am in a position to decide this matter myself without remitting it to the ET. I reach this conclusion with reluctance in a case based on facts that arose nearly four years ago and where it seems inevitable that further evidence will have to be heard. I have considered and weighed the factors mentioned in paragraph 46 of the judgment of a division of this Tribunal presided over by the then President of this Tribunal, Burton J, in the familiar authority of Sinclair Roche & Temperley and others v Heard and another [2004] UKEAT/0738/03, [2004] IRLR 763. Despite the passage of time, it does not seem to me too late for this matter to be looked at again by the same ET and this is not a case of a totally flawed decision. Employment Judge Hargrove is very experienced and the ET decision shows all the hallmarks of a careful and professional approach. I am not concerned that remitting to the same ET will result in a second bite of the cherry and, on the question of proportionality, where only the evidence of only one witness need be reconsidered it seems to me that the just disposal would be for the same ET to both consider again the evidence of Ms Stringer and give her the opportunity to deal with the allegation that she has not told the truth about her motivation, after which it can reach a conclusion as to whether or not her motivation for accepting the recommendation was because the Claimant had previously bought race discrimination proceedings against the Trust. Accordingly, the Order in relation to the Trust will allow the appeal only on the grounds that there has been a serious procedural irregularity in relation to Ms Stringer not having had an opportunity to deal with the allegation that she accepted the recommendation because the Claimant had brought previous race discrimination proceedings and that the ET has not given adequate reasons for rejecting her account as to why she accepted the recommendations made by Odgers. The Trust will be at liberty to file and serve a further witness statement from Ms Stringer and to call her to give further evidence. I will also direct that any application to call any other evidence about this issue should be dealt with by the ET. The scope of the remission is confined to the liability of the Trust and the evidence of Ms Stringer, unless the ET directs that there be further evidence on the issue. Directions as to written submissions, if any, on this issue will also be given by the ET.

The Cross-Appeal

139. The cross-appeal related to paragraph 10.16 and 10.17 of the Reasons (see pages 37 and 38 of the Appeal Bundle). The finding under attack was that “even in the absence of any victimisation, the claimant had only a 50% chance of remaining on the long list and had no chance of being shortlisted, interviewed or appointed to the post”. The ET explain their conclusion at paragraph 10.16 in these terms:

“… We start with the long list issue. We have already noted that the initial conclusion about Dr Saiger’s application drafted by LS … is to an extent positive. It does not suggest that the claimant should not be on the long list. … The LS comment, when taken alone, would explain why the claimant was initially on a provisional long list on 20 December. In addition, although we accept that she did not meet the essential criterion of experience as it was applied by the respondent, her application was by no means lacking in merit in the same way as that of JMcS yet they were marked the same. There was room for the claimant to be marked B/C possibly B. Absent the intervention of the introduction of the information about the claimant’s history to the decision making process, we think that there was a 50% chance that LS would have included her on the long list and neither AS or PB would have intervened to prevent that at the long listing stage. However, we are satisfied that she would certainly not have been shortlisted because she did not in fact meet the criteria either of having three years experience as an Executive Director of Nursing except at a small organisation which was a PCT, and not a hospital Trust, and it was historical in being eight years before. … Nor had she met the alternative criterion of an equivalent position in a large complex organisational environment. …”

Paragraph 10.17 goes on to deal with why she would never have been appointed.

140. The scope of the first ground of the cross-appeal was the subject of some controversy. Mr Powell argued that it already covered the proposition that had the Claimant not been victimised she would have been the subject of a telephone interview at which her prospects might have been entirely different because she would have been able to impart information that might have changed the analysis made by the ET as set out at paragraph 10.16 above. If it was not within the existing grounds, then he applied to amend to include it. This application was opposed by Mr Massarella of counsel, who appeared on behalf of Odgers on the basis that not only was this a late amendment but also it related to matters never ventilated at first instance. It seems to me appropriate to consider all Mr Powell’s arguments on their merits and then, if necessary, concern myself with whether some points can only be open to him if I grant permission to amend.

141. At the heart of Mr Powell’s argument lies the Court of Appeal’s judgment in Chagger v Abbey National plc and another [2009] EWCA Civ 1202, [2010] IRLR 47. He referred, in particular, to paragraphs 43, 57 and 58, and 61 to 64 and derived from them the proposition that the relevant question to ask was “what would have occurred had there been no unlawful discrimination”. In the present context he submitted that the ET had erred in failing to adopt this perspective. They had not considered how the application would have progressed not only in the absence of victimisation but also in the absence of the original discrimination. In his submission “the Chagger approach” meant going back beyond the victimisation and considering the consequence that the original discrimination.

142. Also the ET had placed too much emphasis on the need for “current” experience. This was not part of the essential criteria. This was carried through in a slightly different form in the issue relating to board level experience dealt with in the Reconsideration Judgment (see paragraph 7 at page 42 of the Appeal Bundle). All of these matters should have been developed and investigated through the appointment process, from which, by victimisation, the Claimant had been excluded. In this context also, adopting “the Chagger approach”, these matters might have been explored at the telephone interview stage and the Claimant might have been able to explain why she should be considered further. The ET had failed to recognise that the Claimant was asserting throughout she had the necessary experience and she would have been able to explain at any interview that she had sufficient seniority. Therefore, the ET had adopted far too inflexible an approach to forecasting the future.

143. Another factor that was accorded far too much weight by the ET was the notional criterion of being able to “hit the ground running”. This was a flexible concept and one that was also susceptible to further explanation at a telephone interview.

144. Mr Massarella submitted that the cross-appeal was a combination of argument on new points not raised below and a reiteration of points that had been raised below, none of which amounted to an arguable point or points of law and taken at their highest could not possibly cross the threshold necessary to establish a perversity argument. He accepted that Chagger set out the correct approach. Other cases, Ministry of Defence v Cannock [1994] ICR 918 and Eversheds Legal Services Ltd v De Belin [2011] ICR 1137 also involved application of the principle. There was no basis for thinking, however, that the ET had adopted any other approach or that its conclusions were in any way inconsistent with that approach.

145. Identification of the criteria being required of the successful candidate was essentially a question of fact. Factors such as the ability to “hit the ground running”, the need to be a Director of Nursing or a Deputy Director in a large complex organisation were all properly identified by the ET as relevant criteria. Not only were these findings not challenged at first instance but they were not capable of challenge. In particular, the analysis that the Claimant could not meet the criteria whereas others could do so was a finding of fact, firmly rooted in the evidence, and beyond challenge as perverse.

146. Moreover, it had never been the Claimant’s case during the hearing at first instance that she would have got the job. This position emerged as a matter of argument during closing submissions before the ET. By then her case had become that she merited an interview and would have got the job but the issue had never been debated evidentially and consequently it had not been put to any of the witnesses that the Claimant ought to have had a preliminary interview. Now her case was that the ET should speculate on how her career might have developed if there had not been previous discrimination against her. This explained why she might not fulfil the criteria. But this was not her case at the hearing and even on reconsideration she was only arguing that she ought to have been given a final interview and not that the previous discrimination meant that she could never be fairly considered in the process. The irony was, submitted Mr Massarella, that one of the complaints made in the grounds of cross-appeal was that the ET had indulged in speculation in reaching its conclusion and now the cross-appeal appeared to be based on speculation of the wildest kind. But all this served to illustrate was that the point had never been taken below and, therefore, should not be entertained now.

147. In his submission the ET had reached a perfectly acceptable conclusion of fact after undertaking a careful examination of the evidence. At paragraph 6 of the Reconsideration Judgment the ET considered what it described as “two different pathways by which an applicant could achieve the level of appointability”. The Claimant’s criticisms of this approach were misplaced. The ET was investigating the position of a Director of Nursing and nothing else. Finding that she had not been at the PCT Trust for three years was a factual finding, which could not be challenged. Mr Massarella took me through the factual findings that were made in some detail to illustrate the soundness of the ET’s conclusion that the Claimant did not meet the criteria for appointment. I intend no discourtesy to his industrious preparation and thorough presentation when I say that I need not repeat all the points that he made.

148. Mr Sweeney, on behalf of the Trust adopted Mr Massarella’s submission. Mr Reade made four points, which he submitted disposed of the cross-appeal. Firstly, it could not be disputed that Ms Naylor had been the obvious choice for appointment. Secondly, the ET had made factual findings as to what were the essential criteria for appointment. These were beyond challenge. Thirdly, the Claimant did not meet those criteria, a finding which was also beyond challenge. Fourthly, the ET had been entitled to reject on the reconsideration hearing the proposition that participating further in the process would have enabled the Claimant to explain away her inability to fulfil the criteria.

149. I do not accept Mr Powell’s submission that “the Chagger approach” required the ET to eliminate from consideration both the contravention of the EqA under consideration and the effect of the “protected act” upon which that contravention (i.e. victimisation) was based. A prior concluded case, which has resulted in compensation or, in this case, in a settlement, whilst a necessary part of the contravention relied upon, is not the contravention under consideration. As Lord Prosser put it in paragraph 21 of his judgment in the Inner House of the Court of Session in King and others v Eaton (No. 2) [1998] IRLR 686 the exercise, often necessary in litigation of “reconstruct[ing] the world as it might have been”, is “to embark on a sea of speculation”. Speculation is inevitable in deciding how things might have turned out and such things as the assessment of damages or compensation inevitably involves a degree, and often a high degree, of speculation. But it must be rooted, as far as possible, in reality. Mr Powell’s suggested approach is, on the contrary, rooted in unreality. The prior discrimination is a fact and creating the world as it might have been cannot eliminate the effect of previous discrimination. Nor should it, particularly, where, as here, it has been the subject of litigation and compensation. In those circumstances to take into account again the previous discrimination is a form of double counting. It is not required by the judgment in Chagger and there is no point in me considering the question of amendment further because even if I gave permission for the amendment, the cross-appeal could not succeed on this point.

150. I agree with Mr Reade’s analysis that the four factors he identified are unassailable. That being so, essentially the cross-appeal must be an argument about perversity. In my judgment there is nothing unreasonable about the conclusions reached by the ET and the cross-appeal must be dismissed.

Addendum

151. In the usual way a draft of the above Judgment was circulated to counsel for the parties so as to enable corrections to be submitted. As a result, corrections were duly submitted and the above Judgment incorporates them. On behalf of Dr Saiger the following suggestion was made as to paragraph 125:

“2. In the course of the submissions Mr Sweeney and Mr Powell referred to section 111 and 112 of the Equality Act 2010 by which the Trust was, as Mr Sweeney accepted, liable by reason of Odgers’ proven “basic contraventions”.

On remission, the scope of the Tribunal’s inquiry upon the Trust’s liability should encompass the above approach which was open to the Tribunal (as noted in first sentence of paragraph 125 of the reasons) at the original hearing. As [the] Tribunal did not reject that approach, but adopted another, it should remain before the Tribunal following the Appeal Tribunal’s decision and the order for remission.”

152. I took this suggestion to be a submission as to the terms of the remission in the appeal by the Trust (UKEAT/0276/15/LA) and asked for the above to be sent to all other parties for comments to be made. In response Odgers indicated that they did not object but the Trust opposed Dr Saiger’s submission as to the scope of remission on the basis that it had never accepted liability pursuant to sections 111 and 112 of the EqA and that this had never been in issue at the hearing by the ET.

153. As paragraph 125 above makes clear, the ET found that the Trust was liable pursuant to section 39 EqA. It did not find any liability pursuant to sections 111 or 112 and it was never any part of Dr Saiger’s appeal that it had erred by not doing so. Accordingly, the matter was neither in issue at first instance nor on appeal and that it might have provided another route to liability had it been raised cannot justify any discussion of it on remission, the scope of which will remain as set out above and as set out in the Orders made on this Judgment.

[1] This must be a reference “Langbaugh PCT”.

[2] I am quoting paragraph 8.27 verbatim although the original at page 595 of the Appeal Bundle reads not “by” but “about”.

[3] Again I am quoting paragraph 8.27 although the original at page 594 of the Appeal Bundle reads “3.15”.

[4] The date given at paragraph 10.3 is 19 December 2013, but that must be a typographical error.

[5] This is what appears at paragraph 10.14 although other evidence suggests it was Ms Spurgin and not Ms Stringer who contacted Mr Blythin.

[6] The Trust submitted this was an error, typographical or otherwise, and that the reference should be to Ms Stringer of the Trust.

For NHS Trust Development Authority	MR DAVID READE (One of Her Majesty’s Counsel) and MR ANDREW SUGARMAN (of Counsel) Instructed by: Hempsons Solicitors Hempsons House 40 Villiers Street London WC2N 6NJ
For North Cumbria University Hospitals NHS Trust	MR SEAMUS SWEENEY (of Counsel) and MS KIRTI JERAM (of Counsel) Instructed by: DAC Beachcroft LLP Wellbar Central 36 Gallowgate Newcastle Upon Tyne Tyne and Wear NE1 4TD
For IRG Advisors LLP t/a Odgers Berndtson	MR DAVID MASSARELLA (of Counsel) Instructed by: DLA Piper UK LLP Princes Exchange Princes Square Leeds LS1 4BY
For Dr S M Saiger	MR RICHARD POWELL (of Counsel) Direct Public Access

United Kingdom Employment Appeal Tribunal