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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Barker & Ors v Shahrokni [1996] UKEAT 89_95_0503 (5 March 1996) URL: http://www.bailii.org/uk/cases/UKEAT/1996/89_95_0503.html Cite as: [1996] UKEAT 89_95_503, [1996] UKEAT 89_95_0503

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BAILII case number: [1996] UKEAT 89_95_0503

Appeal No. EAT/89/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th March 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R SANDERSON OBE

MISS S M WILSON

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1) MS BARKER
2) DR K EAMES
3) MRS P HAIKIN          APPELLANTS

MR F SHAHROKNI          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the 1st and 3rd Appellants MR M WEST

(Senior Advocate)

Peninsula Business Services

Stamford House

361/365 Chapel Street

Manchester

M3 5JY

For the 2nd Appellant MR W BIRTLES

(of Counsel)

Messrs John Bowden Trainer & Co

Solicitors

20-21 Tooks Court

Cursitor Street

Chancery Lane

London EC4A 1LB

For the Respondent MS K MONAGHAN

(of Counsel)

C.R.E.

Elliot House

10/12 Allington Street

London SW1E 5EH


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London (North) between 7th and 11th November and on 14th November 1994.

The tribunal unanimously decided that the applicant Mr Farhad Shahrokni, a part-time lecturer, had been the victim of direct racial discrimination and victimisation. The respondents held liable for this discrimination and victimisation were Kingsway College, Mrs B Barker, Dr K Eames and the principal of the college, Mrs P Haikin.

The tribunal sent the extended reasons for the decision to the parties on 1st December 1994. They stated that the parties should endeavour to agree compensation, but, if nothing could be agreed by 1st February 1995, the case should be restored to the list.

A Notice of Appeal was served on 11th January 1995 by all those respondents found liable. There was a fifth respondent, a Ms Daly, against whom the complaint was dismissed.

The preliminary hearing of the appeal took place on 24th May 1995. The appellant College and the three individuals mentioned were represented by the same Counsel who had represented them all at the hearing in the Industrial Tribunal. He is not the same Counsel who has appeared on the full hearing of this appeal.

The tribunal directed that the appeal should be allowed to proceed to a full hearing solely on the question of the liability of the individual appellants for the acts of unlawful discrimination and victimisation. The terms of the order were explained in the short judgment given on that hearing. The College were not allowed to proceed with their appeal against liability for discrimination and victimisation. The tribunal were unable to find any error of law in the decision that the College should be liable to Mr Shahrokni. It was also pointed out in the judgment that, as the College were no longer allowed to dispute liability, there was no reason why the question of compensation should not be agreed, or failing that, why the matter should not restored to the Industrial Tribunal to determine compensation. The judgment concluded:

" We direct that the matter of compensation should now be restored to the Industrial Tribunal, unless agreement is reached on the amount."

Compensation has still not been determined as between the College and Mr Shahrokni. A hearing was due to take place on remedies on 21st February 1996, but, on the application of the solicitors acting for Kingsway College, that was postponed. The Chairman of the tribunal directed that it should be relisted after 8th April 1996. The Chairman accepted the argument advanced by the College's solicitors that postponing the remedies hearing until after this appeal had been determined would avoid the possibility of two compensation hearings and would avoid the confusion that might result from that.

There have also been some further developments in the appellants' camp which we should summarise before we examine the merits of the appeal.

First, there has been a change of Counsel. Mr Birtles, who did not appear in the Industrial Tribunal or at the preliminary hearing, is now instructed to represent Dr Eames, the head of the mathematics unit at the College. The College is no longer taking part in the appeal for the reasons mentioned.

The other two individual appellants, Mrs Barker and Mrs Haikin have taken no part in the hearing of the appeal. Their position was explained in a letter from Mr West of Peninsula Business Services Ltd, to this tribunal on 28th February 1996. They have decided not to pursue the appeal. It is unnecessary to consider the reasons for that decision. Mr West appeared at the opening of the appeal and asked for leave to withdraw the appeal of Mrs Haikin and Mrs Barker. There was no objection to that course from either Mr Birtles or from Ms Monaghan, who appears for Mr Shahrokni. Leave is given for appeals of those two appellants to withdrawn. Their appeals are accordingly dismissed.

That leaves Mr Shahrokni's claims against Dr Eames. On this we are indebted to both Mr Birtles and Ms Monaghan for the clarity and moderation of their submissions. That has been helpful in clarifying and resolving a legal situation which requires careful thought.

Before we consider the findings and reasoning of the tribunal and the criticisms of it; we shall refer to the relevant statutory provisions. The complaints by Mr Shahrokni were of both direct racial discrimination and victimisation. The basis of them was that he had been refused part-time teaching or lecturing in the mathematics unit at the College in the year 1992-93. His case was that he had been refused employment on the grounds of race, and because he had committed protected acts within the meaning of Section 2. The relevant Sections are as follows, Section 1(1) defines direct discrimination in sub-paragraph (a).

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons ..."

Section 2 defines discrimination by way of victimisation:

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

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

Section 3 defines racial grounds and racial group. Section 3(4) states:

" (4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

Section 4 deals with discrimination by employers against applicants and employees in the employment field:

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

...

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

Other Sections concern the statutory machinery for making persons other than employers liable. It is clear from the scheme of the Act that the primary liability for discrimination in the employment field is on the employer. It may be imposed vicariously for the acts done by an employee in the course of his employment. That is provided for in Section 32, as is also the case of the liability of a principal for the acts of an agent done with authority. The relevant Section for imposing liability on an individual employee is in Section 33:

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

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

We have been referred to one decision, that of the Court of Appeal in Aziz v Trinity Street Taxis Ltd [1988] ICR 534. That case decided that, in determining whether a complainant has been treated less favourably for the purpose of Section 2(1) of the 1976 Act, the treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he applied or would apply to persons who had not done the relevant protected act. It also decided that, in order to establish that the alleged discriminator had treated the complainant less favourably "by reason that the" complainant had done a protected act, it had to be shown that the act by the complainant under or by reference to the race relations legislation had influenced the alleged discriminator in his unfavourable treatment of the complainant.

The first question is: what did the alleged discriminator do? Was it treatment of the person victimised or discriminated against less favourable than he had given or would give to others in like circumstances?

The second question concerns causation. The tribunal has to ask: what was the reason for the unfavourable treatment? Was it for a racial reason? That is asked in relation to a complaint of direct discrimination. Was it because the person victimised had done one of the protected acts? That is relevant to the complaint of victimisation. They are separate, though connected, questions. It is important that a tribunal determining complaints of direct discrimination and/or victimisation, states distinct findings of fact and reasoning in their answers to those questions.

A party who loses a case is entitled to be told by the tribunal why he has lost. This means that there must be adequate findings of fact and an adequate process of reasoning, so that the person who has lost can find in the decision the answer to the question why have I lost the case? The passage in the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 at page 251 paragraphs 8-12 on this point, is one of the most often cited passages in this tribunal. It is a valid ground of appeal that the appellant has not been given sufficient facts and reasons for them to understand his failure in the tribunal.

We have emphasised those legal provisions in the 1976 Act and that case law, because Mr Birtles's able submissions focused on the lack of reasoning in the decision, on deficiencies in the findings of fact, and on faulty or non-existent reasoning on causation.

The tribunal's findings are set out on pages 9 and 10 of the bundle. Mr Shahrokni's complaint was that, although there was part-time teaching available in the mathematics unit at Kingsway College in 1991/92, and in 1993/94, there was no part-time teaching in the year 1992/93. This was, he said, no coincidence in relation to his application for part-time teaching in that unit. It so happened that he had proceedings in the Industrial Tribunal. Dr Eames was one of the respondents. He had started those in 1990. They were settled on agreed terms on 25th October 1991. He applied for a part-time job, but he did not get it. He started three more sets of proceedings alleging direct discrimination and victimisation. Dr Eames was a respondent to two of those. The first set of proceedings was on 29th October 1992; the second on 19th April 1993 and the third on 13th August 1993.

In relation to his complaint that there had been direct discrimination and victimisation in refusing or omitting to offer him part-time teaching in the mathematics unit, the tribunal said this:

"5 ... It is for an applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. The outcome of a case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. In this case we have an applicant who wanted to teach at the College and was particularly single-minded in achieving that aim. However, he was selective in the work he was prepared to do and regarded it as his prerogative to pick the best paid work which involved the minimum of preparation. Although there was no criticism of his teaching skills, he was very much a political activist. He was supported in his application by Mr Phillips, who attended on a witness order, and Ms Haynes. ..."

The tribunal referred to the evidence given by them. The tribunal dealt with the individual respondents. They said:

"Mrs Haikin gave evidence as Principal and we formed the impression that she was somewhat removed from the realities of the situation. We were impressed by the evidence of Mrs Barker who found herself in a difficult situation and did her best to maintain a positive attitude throughout. We heard evidence from Ms Daley who was primarily responsible for training secretaries and office administrators. She had not work available to give the Applicant and he made no attempt to meet with her even though he was encourage to do so. We do not know why the Applicant chose to involve her as a Respondent in these proceedings and accordingly dismiss the complaint against her."

They then considered the position of Dr Eames:

"We were not impressed by Dr Eames who was pitched into a difficult situation with inadequate training in racial awareness. He soon found himself out of his depth. He sought to avoid all personal contact with the Applicant who at the time of his arrival had worked for the Maths Unit for many years. We also heard evidence from Ms Lee ..."

Having stated their views on the individual respondents. The tribunal briefly expressed their conclusion for finding in Mr Shahrokni's favour. They said this:

"We find that the College and each of the named Respondents with the exception of the Second Respondent [Ms Daly] treated the Applicant less favourably. There does not appear to have been any logical reason for this treatment other than the fact that he had brought cases to the Industrial Tribunal and had been vocal in his role as spokesman on matters of racial equality. While there had been a reorganisation and cuts, it is remarkable that their effect on the Maths Unit was disproportionate to their effect on all other units. We find that the Principal's letter of 20 May 1993 was ill-advised and motivated by the second application to the Tribunal."

That second application had been brought on 19th April 1993.

"Mrs Barker did her best to carry the Maths Unit and to meet the demands of her Principal. However, she was insufficiently positive in her advice to Mr Phillips to confirm in his preferred course of action. Both Dr Eames and Mr Goss were inadequate to deal with the situation in which they found themselves."

That we observe, is the last mention of Dr Eames in the tribunal's decision.

"With regard to Section 2(2) of the Race Relations Act 1976, while some aspects of the allegation made by the Applicant were lacking in substance, the main tenor of that allegation was not false but made in good faith. We were impressed by Mr Phillips who was generally supportive of the Applicant's case. So far as the meetings with the Commission for Racial Equality are concerned, these did seem to founder and the excuses that were made by the College did not prevent them from nominating some able person within their ranks to take over from the Equal Opportunities Director when he became ill. With regard to causation, this is a case where the Applicant has presenting three Originating Applications which in sum have served to prove his main complaint that he was not offered part-time work teaching maths for the Maths Unit of the College because he had performed various acts which are protected acts within Section 2 of the Race Relations Act 1976."

Those are the tribunal's reasons for finding that all of the respondents to the proceedings, excluding Ms Daly, were liable for direct discrimination and for victimisation. Dr Eames, on reading those conclusions, could justifiably ask: what are the reasons for making me liable for direct discrimination and victimisation? There are references to the difficult situation in which he found himself with inadequate training and to the fact that he was out of his depth and sought to avoid personal contact with the applicant. But where are findings of fact or reasoning which fix Dr Eames with a liability for under Sections 1, 2, 4 or 33 of the 1976 Act.

We wish to make a general comment on proceedings for race discrimination and victimisation against more than one respondent. As appears from Sections 32 and 33, more than one person may be liable for discrimination and victimisation. An employer may be vicariously liable for discrimination by an employee. An employee may be deemed personally liable for aiding an unlawful act of discrimination by his employer. If a case is brought against more than one respondent, it is important that the tribunal in their decision makes clear the facts found relating to each separate respondent, and the reasoning which leads them to find each respondent liable. It is not satisfactory for a case against five different respondents decided, as in paragraph 5 by saying "the College and each of the named Respondents with the exception of the Second Respondent treated the Applicant less favourably." Each of the respondents is entitled to specific findings of fact as to what treatment they are alleged to have given to the applicant and in what respects that treatment is less favourable that they have given or would give to others in like circumstances. There is a danger of an over generalised approach leading to "guilt by association". It is wrong for individual employees to be made liable along with their employer simply because they work for the employer and have been concerned in a general way in the actions that have given rise to the complaint. The individual employees are entitled, as much as an employer, to reasons of fact and law as to why they are held personally liable for aiding the commission of wrongs.

It is not necessary to examine all the facts in this case. Only Dr Eames is left as an appellant. What was decided about Dr Eames and his part in the events of which Mr Shahrokni makes complaint? Dr Eames was the head of the Mathematics Unit in which Mr Shahrokni, who is of Iranian origin, had worked for a long time under a number fixed term contracts. Dr Eames joined the staff of the College in September 1990. He had previously taught in a secondary school. He was approached by Mr Shahrokni who requested part-time teaching work. At that time the College was anxious to recover a key held by Mr Shahrokni to the computer room. Mr Shahrokni indicated to Dr Eames that if he was not given work he would present an originating application to the Industrial Tribunal claiming race discrimination. This was not a good start to the relations between Dr Eames and Mr Shahrokni. The result was they both took out grievance procedures against each other shortly after that meeting. Later in 1991, Mr Shahrokni presented an originating application, as he had threatened. That was ultimately settled on 25th October 1991. Dr Eames was one of the respondents. The other respondents were Mrs Barker and Mr Haikin.

The tribunal record the terms on which the case was withdrawn. A payment of £4,000 was made by the College to Mr Shahrokni. It was provided that he should be enroled on a teaching training course run by the College in conjunction with the University of London Institute of Education. The College would invite the CRE to discuss with the College and the Local Education Authority the operation and implementation of the College's Equal Opportunities Policy and Mr Shahrokni would have the opportunity to contribute to the discussions. The settlement was in full and final settlement of all claims with the exception of an outstanding grievance. The College and Mr Shahrokni undertook to work towards a positive working relationship for the future. Unfortunately that did not happen.

In the years 1991 to 92 and 1992 to 93 the London Borough of Camden, the Educations Authority for Kingsway College, was subject to substantial cuts in funding. The College had to find savings of 10% in the first year and a further 10% of what remained in the second year. Courses were discontinued. The criteria was on the basis of demand, retention rates of students and poor results. In the academic year 1992 to 93 the Maths unit found itself in the unusual position of having no work to offer part-time lecturers, apart from a course on interview techniques for which Mr Shahrokni was not a candidate. In all, five part-time lecturers to whom part-time contracts were awarded in the previous year failed to secure contracts in that year.

That is the first and last we hear of the five part-time lecturers who failed to secure contracts in the relevant year. We learn nothing in the decision about who they were, apart from Mr Shahrokni., or what their racial origins were, or why they were not offered part-time contracts, apart from the effect of the financial cuts.

Mr Ansel, a white European, secured work in another unit. A Mr Hussain secured some work in GCSE maths. The tribunal found that that year 1992/93 was the only year in which part-time teaching was not available in the Maths Unit.

The tribunal referred to the applications presented by Mr Shahrokni in October 92, April 93 and August 93. Dr Eames was a respondent to two of those three. Mr Shahrokni's initial complaint was that he had not been offered part-time teaching. The tribunal said:

"At the time there was no suitable part-time teaching work in the Maths Unit."

His second application was presented on a complaint that he had not received a response to a race relations questionnaire. The position in relation to part-time lecturing was unchanged at that time. (April 1993).

The tribunal traced the history of the matter without further mention of Dr Eames. The tribunal referred to a letter written by Mrs Haikin on 20th May 1993 and to the refusal of Mr Shahrokni to withdraw his grievance against Dr Eames.

The tribunal set out in paragraph 2(i) of their decision, facts from which they drew the inference that the respondents, apart from Ms Daly, had unlawfully discriminated against Mr Shahrokni by reason of his race. What facts were found against Dr Eames?

"(i) ...

(i) It was remarkable that no part-time teaching in maths was available in the academic year 1992 to 1993. Work was available in previous years and afterwards. This seemed to be a period of respite that the College sought to terminate ... with the Applicant. The Third and Fourth Respondents [Dr Eames was the fourth respondent] were responsible for this work."

There is no further mention of Dr Eames until we come to paragraph (iv) of (i):

(iv) From the time he first met the Applicant the Fourth Respondent found himself incapable of dealing with a person so assertive of his legal rights as the Applicant and sought to avoid personal contact with him as far as was possible"

The tribunal also found that:

"(vi) In a College with a high ratio of ethnic minority students inadequate attention was given to training in racial awareness."

The tribunal mentioned Dr Eames in paragraph 3, where they found that Mr Shahrokni had not got off to a good start with Dr Eames, and had not been offered much in the way of work, whereas in the year 1992/93 Mr Ansel had found work in another unit and Mr Hussain had been informed that there was work for him. The Maths Unit was the only unit with no part-time teachers. Part-time work was available in all the other years. In an important passage the tribunal said at the end of paragraph 3 that Mrs Haikin had accepted that the reasons that Mr Shahrokni did not receive work were associated with his application to the tribunal. Nothing more was said about Dr Eames in that paragraph, nothing about his involvement in the decision that there would be no part-time lecturing in the Mathematics Unit, or his control over that situation.

The final passage was referred to by Ms Monaghan. At the end of paragraph 4 the question of causation was the subject of a submission by Counsel, then representing the respondents. Counsel said on the matter of causation that, if Mr Shahrokni could show that he had done an act under or by reference to the Race Discrimination Act, then to succeed he had to go on and show that the act influenced the respondents in unfavourable treatment of him. That could not be done here, it was submitted, because to the extent that Mr Shahrokni was unfavourably treated (which was not accepted) on the evidence the treatment arose out of budgetary and consequential staff cuts.

We ask the question. Where in that decision are the facts or reasons which justify a conclusion that Dr Eames treated Mr Shahrokni less favourably than he treated or would treat others in like circumstances? Where in that decision do we find the facts and legal reasoning to justify a conclusion, that whatever Dr Eames did by way of unfavourable treatment was on racial grounds, thus making him liable for direct discrimination or was by reason of a protected act, making him liable for victimisation.

Ms Monaghan made helpful submissions in which she identified the findings of fact on discrimination and causation relating to Dr Eames, which, she said, justified the decision, so that there was no error of law on which Dr Eames could appeal. She prefaced her remarks by general observations that the tribunal had correctly directed themselves on both the question of inferences; on the burden of proof; and on the test of causation. If a tribunal has given itself correct legal directions, and has found facts justified by the evidence, this tribunal can only interfere if it is demonstrated by the appellant that no reasonable tribunal would have reached these conclusions. If the tribunal has come to what is described as a "permissible option" in their conclusions, there is no ground of appeal. Her submission was that the findings of the discrimination and victimisation against Dr Eames were a permissible option. Following their correct self-direction on the law. They had found facts which entitled the tribunal to conclude that he was liable along with the other respondents.

The facts found by the tribunal were that Dr Eames was the head of the Maths Unit; that in the relevant year 1992/93 there was no part-time teaching work in the Maths Unit; that was the only year no such work was available. Dr Eames was the person who was responsible, along with Mrs Barker, for part-time teaching in maths. The decision to stop all part-time teaching in the Maths Unit was so as to provide what they described as "a period of respite" during which the College sought to terminate their relationship with Mr Shahrokni. These findings of fact had to be looked at also in the context of wider findings. The College had a high ratio of ethnic minority students, but did not pay adequate attention in racial awareness. Dr Eames had avoided contact with Mr Shahrokni. He had inadequate training in racial awareness. The tribunal were not impressed by Dr Eames. They found him to be inadequate to the situation.

Those points were relied on in relation to the point of less favourable treatment of Mr Shahrokni by Dr Eames. And on the question of causation. On causation that the tribunal had found that Mr Shahrokni had previously made a complaint of race discrimination against Dr Eames. That was withdrawn on agreed terms. Mrs Haikin, the Principal, had accepted in her evidence that the reason that Mr Shahrokni was not receiving work were associated with his application to the tribunal. The tribunal found that there did not appear to be any logical reason for the less favourable treatment of Mr Shahrokni, other than the fact that he had brought proceedings in the Industrial Tribunal and had been vocal as a spokesman on matters of racial equality. The tribunal found that Dr Eames was a person who was incapable of dealing with Mr Shahrokni who was assertive of his legal rights. So he sought to avoid personal contact with him as soon as possible. The reference to the assertion of rights was a reference to Mr Shahrokni's assertions of race discrimination, including the assertions he was making in the Industrial Tribunal proceedings. Accordingly, the tribunal were entitled to come to the conclusion that the decision not to give him a teaching post in Dr Eames's department, the Maths Unit, was by reason of the racial complaints under the 1976 Act made by Mr Shahrokni to the Industrial Tribunal.

Ms Monaghan summed it up; looking at the matter overall, the tribunal had decided that Dr Eames was liable in the context of the unusual circumstances or remarkable circumstances that existed in the department for which he was responsible. There was no part-time teaching in that year. That was unlike the year before and the year after. The effect of the cuts to that unit was disproportionate to the effect on other units at the College. This was put into context with the finding of the tribunal, on Mrs Haikin's evidence, that the reason he was not getting work was because of his applications to the tribunal and the finding of the tribunal that what the College was seeking to do in that year was to terminate their relationship with Mr Shahrokni.

We pay tribute to Ms Monaghan for the clarity and force of those submissions. Those submissions help us to resolve the position about Dr Eames. Ms Monaghan has said all that could possibly be said about the case of Mr Shahrokni against Dr Eames. We have reached the conclusion, notwithstanding those able submissions, that Mr Birtles is right when he says that there are legal errors in this decision. They make it necessary to allow the appeal and to remit the question of the claim against Dr Eames to be reheard by a different Industrial Tribunal.

The errors of law are these. First, there is insufficient reasoning to explain to Dr Eames why he has been found liable for discrimination and victimisation. The error is in not observing the standards set by Bingham LJ in Meek for holding a respondent liable for the complaints made against him. The importance of dealing with the claim against each respondent separately has not been observed.

Secondly, we agree with Mr Birtles that there is no finding of fact or inference from primary facts in relation to Dr Eames's alleged discriminatory treatment of Mr Shahrokni. The Act requires that the person alleged to be the discriminator has treated the person discriminated against less favourably than he has treated or would treat others. The alleged less favourable treatment is in not giving him the job of a part-time teacher of maths. The facts found by the tribunal are that there were five people in this position. There is no explanation as that composition, racial or otherwise, of this group of five. If there are in that group of white part-time lecturers who did not get part-time work it is difficult to see how laying off five part-time lecturers, including Mr Shahrokni, is less favourable treatment of Mr Shahrokni than of other people in like circumstances. There is no disparate impact on him.

A similar criticism can be made of the tribunal's treatment of causation. If there was, less favourable treatment of Mr Shahrokni than of others by Dr Eames, then it also has to be found that the reason for that action by Dr Eames was a racial one (for the purposes of direct discrimination) or was by reason of the commission of a protected act. But there are no findings by the tribunal and no explanation of inferences from primary facts on the causation question in relation to Dr Eames. Overall there is lacking in this decision, in relation to the liability of Dr Eames, the reasoning, and the facts required to explain why he has been found liable.

For those reasons we allow this appeal. We remit the case to the Industrial Tribunal differently constituted than before. We agree with Mr Birtles that to send this back to the same tribunal, which heard the case against five respondents, would be to ask them to perform a difficult task in disentangling the case against Dr Eames from the other cases which are undisturbed on appeal.

We add a note on a point of procedure. At the opening of the appeal, Mr Birtles made an application for leave to amend his Notice of Appeal. He candidly conceded that he did not feel able to argue the case on the basis of the existing Notice of Appeal for which he was not responsible. He submitted that the amendments should be made, because the findings against Dr Eames were serious. It would not prejudice the respondent because Ms Monaghan had been briefed at short notice by the Commission of Racial Equality to represent Mr Shahrokni. She had prepared answers to the amended grounds. They appeared in her skeleton argument. He made a more general point that difficulties had arisen in the conduct of this whole case from a fact which was pointed out by this tribunal at the preliminary hearing, that one Counsel and one firm of solicitors represented all the parties. This fact was now absent from the appeal. He alone was representing Dr Eames. Nobody else was involved.

At first Ms Monaghan opposed this. We do not criticise her for doing so. A party faced with a late amendment is entitled to object to it on the grounds of lateness. But she was not able to persuade us that she was prejudiced by the amendment. She rightly withdrew her opposition to the amendments.

For all those lengthy reasons, we allow the appeal and remit the case of Dr Eames to a different tribunal. We will hear any other submissions which the parties want to make.