Appeal No   EAT/475/00
EAT/1352/98EAT/1353/98EAT/1354/98EAT/1356/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                              At the Tribunal
	On   23, 26. 28, 29,30 March 2001
	         2, 3, 4, 5, 6, 9, 10 April 2001
Judgment delivered on 16 May 2001

Before
THE HONOURABLE MR JUSTICE BURTON
MR P DAWSON OBE
MR I EZEKIEL

MR B CROFTON	APPELLANT

MR S YEBOAH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant

IN PERSON		
For the Respondent

IN PERSON 		

MR JUSTICE BURTON 

INTRODUCTION

1.	This is the unanimous decision of the Employment Appeal Tribunal (“EAT”) in respect of the appeals by Bernard Croften (“BC”), former Director of Housing at the London Borough of Hackney (“Hackney”) against findings made against him by the Industrial Tribunal (now Employment Tribunal) at London North (“the Tribunal”) in four applications brought against him by Sam Yeboah (“SY”), former Head of Personnel Services at Hackney.

2.	Seven cases were heard together by the Tribunal, and the hearing was very long indeed.  It was held over one hundred and four days between 7 April 1997 and 17 March 1998, and seven reserved decisions were given on 1 September 1998. It was a very heavy burden for the Chairman and the members of the Tribunal, and for the parties. The preparation of the seven decisions must have been a Herculean task.

3.	One party, BC, was unrepresented before the Tribunal, though for much of the time he had a trade union representative at his side. SY was represented by solicitors and experienced Counsel, Karen Monaghan, instructed by the Commission for Racial Equality (“CRE”), and Hackney, which was a party to all seven applications, was also represented by solicitors and experienced Counsel, Thomas Kibling. The order in which the applications were taken, namely, first, SY’s case on his seven applications, then BC’s case on his one application, and then finally the defence of Hackney, which was a Respondent to all seven of those applications, but which, in fact, called most of the factual witnesses, meant that BC was not only unrepresented, but also sandwiched between the two represented parties. This meant, quite apart from the difficulties caused by the length and complexity of the seven applications, that extra care had to be taken to ensure that BC’s position was not prejudiced, particularly as he continued to be obliged to carry on his employment by Hackney throughout the period of the hearing. The central rule governing procedure at the tribunal hearings is Rule 9 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 which provides:-
“(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

(2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal.”

Assistance in relation to the effect of this Rule can be derived from Aberdeen Steakhouses v Ibrahim [1988] ICR 550 at 556 -8.  

4.	Of the seven applications which were heard together, one was brought by BC against Hackney, SY and a Mr Craig. This was dismissed, and the EAT did not give him permission to appeal. Six were brought by SY. BC was not a party, though a material witness, in the fifth and sixth applications, which were brought, as to the fifth against Hackney and a Mr Elliston, and, as to the sixth, which included a claim for unfair dismissal, against Hackney alone. Of these, the fifth application was dismissed, while SY succeeded in the sixth application against Hackney and Hackney has not appealed.  

5.	As to the four other applications:

(i)  claims for victimisation brought by SY in the first and second applications were abandoned during the Tribunal hearing.

(ii)  SY was successful on the first and second applications against BC in respect of racial discrimination but failed against Hackney.  BC appeals with permission of (i.e. after a preliminary hearing by) the EAT.  

(iii)  The third application falls into two parts.  In part one SY failed against BC but succeeded against Hackney, which again has not appealed.  In part two (the “Police List” case) SY failed against Hackney and succeeded against BC.  BC again appeals, with permission of the EAT.

(iv)  The fourth case again falls into two parts.  In part one (the “Private Eye” case) SY succeeded against BC and Hackney so far as concerned one Private Eye article (and failed so far as concerned another Private Eye article and a BBC television programme), and BC appeals; and in part two, which related only to Hackney, SY succeeded against Hackney and Hackney has not appealed.  

6.	 The effect therefore is that whereas the Tribunal was faced with three parties, only two, BC and SY, have been before us on this appeal: and whereas the Tribunal was faced with seven applications (more like nine, given the bipartite nature of the third and fourth applications), and including unfair dismissal and, for a time, victimisation claims as well, we have had only to deal with four - or in the event three, for, as will appear, the Private Eye case appeal was not effective before us. This has inevitably simplified the task with which we would otherwise have had to deal, and with which the Tribunal had to deal. It has also meant that, although we have carefully read all seven decisions, and looked at all the documents which either party has considered relevant to the issues before us, the picture relating to the issues actually to be decided on the three applications before us has inevitably been much clearer than it would have been at first instance.

7.	 We have been very aware indeed that the Tribunal had the benefit of seeing and hearing the oral evidence of the witnesses, and although, for the reason that, as will appear, each party  represented himself before us, we have had more than the usual opportunity available to an appellate court of hearing and seeing the parties themselves, over a hearing which lasted (exclusive of pre-reading days) twelve long sitting days, and we have had sight of very lengthy transcripts of the hearing prepared by Hackney’s solicitors as well as substantial extracts from the Chairman’s Notes (agreed passages of which were obtained to supplement or clarify the very full transcript), nevertheless we have not, in particular, seen the parties cross-examined.  SY was in the witness box in the Tribunal for twenty five days and BC for twenty. We have also been very conscious of the status and the limited role of an appellate, as opposed to an originating, Tribunal, and of the guidance to appellate courts given in particular in Neale v Hereford & Worcester County Council [1986] ICR 471 at 483, British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 35, Piggott Bros & Co Ltd v Jackson [1991] IRLR 309 at paras 15 – 19 and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 and we have been referred to Grobbelaar v News Group Newspapers Ltd & Another CA [2001] EWCA Civ 33; [2001] 2 AER 437.

8.	As indicated above, in the event both parties have been unrepresented before us, so that there has been a “level playing field”. In SY’s case, we, and he, have had the benefit of a detailed Skeleton Argument prepared by Ms Monaghan, when she was still instructed by the CRE before economic stringencies compelled that agency’s withdrawal: additionally, SY himself instructed Ms Monaghan to appear before us to argue one point of law, to which I shall refer later.  BC produced his own Skeleton Argument, but had the benefit, on the same point of law, of argument pro bono by Gary Morton of Counsel.  Both BC and SY acquitted themselves very well as advocates, and, fully tested by this tribunal, put over all their points with persuasive force, and we feel that in the hearing all issues have been fully canvassed. Both BC and SY had full opportunity to make submissions, and only very rarely slipped into giving evidence, such infrequency not being surprising, given the amount of evidence that was, in any event, before us in the files and the transcripts, not only of the Tribunal hearing but also of the internal Hackney disciplinary and appeal hearings, and given the obvious detailed knowledge both parties had of what there was, and where it could be found. We had the feeling that both benefited from this. SY took advantage of being his own advocate, though he, of course, had had the assistance of an able and talented legal team below. BC had clearly felt extremely constrained below. He had not had the opportunity of opening his defence to SY’s applications (his opening being limited to a presentation of his own application); he gave his evidence before Hackney’s, and was not able to come back on matters raised or produced by Hackney’s witnesses, nothwithstanding that in many respects Hackney had common cause with SY: and the course taken by the Tribunal was to insist upon written submissions and only short oral supplementation, limited in the event to something under half a day per party. In the appellate context, there were no such restrictions.  

9.	I have mentioned above the “Private Eye case”. The Tribunal concluded, in its fourth decision, that in respect of an article published in Private Eye on 27 January 1995 (though not one published on 14 November 1994):
“[BC] made these allegations to Private Eye, either himself, or knowingly through an agent, and … we do not accept [BC’s] denial as to this article” on the basis that the “article bears the ‘fingerprints’, or rather the ‘voice and style print’ of  [BC]” .

BC denied in relation to both articles that he was the source of them, but in any event, they were both published (supportively of him, and critically of SY) at a time when he was suspended from employment and defending disciplinary proceedings, which he was hoping, successfully, to challenge, knowing that SY was his primary accuser. As can be seen, the Tribunal concluded that he was the source, and indeed the vicarious author, of the second article, and that such amounted to an act of racial discrimination by him against SY in the course of his employment by Hackney. In supporting the conclusion of the Tribunal in this regard, on appeal, SY faced substantial difficulties:-

(i)  In the absence of any evidence in fact connecting BC with the article or with Private Eye, little or no explanation was given by the Tribunal as to what it meant by the “fingerprints”; and particularly no exposition is given of the distinction, if any, between the January 1995 article and that of 14 November 1994 in respect of which (without  explanation) it had absolved BC.  

(ii) The EAT gave permission at a preliminary hearing on 26 July 2000 for the admission on this appeal of fresh evidence by a Mr Glinert, who was the journalist who wrote the article in question, and whose evidence would have been that BC was not the source of the article.

(iii)  The case on ‘course of employment’ in respect of a suspended employee causing or allowing (if he did) publication in an independent journal in an attempt to assist him to get his job back, would appear to stretch the authority of Jones v Tower Boot Co Ltd [1997] ICR 254 to, and perhaps past, its limit.  

No doubt mindful of this, and perhaps also of the fact that in the event for various reasons no compensation was sought by SY or ordered against BC in respect of this finding, SY, after taking advice from KM, indicated at the very outset of the hearing before us that he did not oppose this, fourth, appeal being allowed, and he is content, and we are satisfied, that it is appropriate to allow the appeal in this regard and to dismiss the fourth application, the Private Eye case, number 70911/95, against BC.  

10.	In respect of the surviving three appeals, the first and second revolved around a series of allegations which BC made, or was said to have made, against SY. These are set out in the lengthy decisions of the Tribunal as thirty eight allegations, which have been helpfully listed in Appendix A to Ms Monaghan’s Skeleton. By virtue of the adoption by the Tribunal of this course, of identifying separate allegations, there is, in our judgment, massive duplication, because many of them are repetitious or only marginally different from each other; the Tribunal has first set out what BC said, or is said to have said, to or about SY originally, then it sets the allegations out again, either in the same or similar or differing forms, when, if they are, they are repeated, or defended, by BC in the various internal investigations and enquiries by the Council (first an internal investigation by Mr Craig (October 1992 – September 1994),  then by Mr White (October – November 1994) then BC’s disciplinary hearing (October 1994 to March 1995), and then his successful appeal (September – October 1995)) and then during the Tribunal hearing itself. Repetition and duplication is thus inevitable.  On analysis, however:-

(i)  Twenty of the allegations, though many of them only marginally differently phrased, relate only to the issue which I shall call “Recruitment Fraud”, which forms the first and major factual issue of this appeal.

(ii)  Eight relate only to the issue of Mr Onuoha (“the Onuoha issue”) which forms the second main factual issue in the appeal. 

(iii)  One, because it interconnects the two, relates both to the Recruitment Fraud issue and the Onuoha issue. 

(iv)  One relates to the subject matter of the second application, which I shall call the “Warnock” issue: the third factual issue.

(v)  One relates to the “Police List” issue, the subject matter of the third application (and the fourth factual issue on the appeal).

(vi) There are seven miscellaneous allegations (three of which relate to one issue associated with the investigation of the Onuoha issue, being the “Beavis issue”).  

I consider that this analysis helps to clarify matters.  

11.	Leave was given to adduce fresh evidence: 

(i)  In respect of the Private Eye case, admission of the evidence of Mr Glinert was ordered, as set out in paragraph 9 above, which clearly contributed, if not led, to the abandonment of SY’s opposition to the fourth appeal.

(ii)  In respect of the evidence of Hackney’s Chairman of Housing, Councillor Linda Hibberd, and of Ms Linda Bellos, permission was given at the preliminary hearing on 6 March 2000.  Both related to the Recruitment Fraud issue, and SY agreed, in the course of argument before us, that Councillor Hibberd’s evidence was “absolutely crucial” in that regard.  

(iii)  Leave to adduce in evidence handwritten notes taken by Mr White, then Chief Executive of Hackney, also central to the Recruitment Fraud issue, was given at the same preliminary hearing on 6 March 2000.  However these documents were not in the possession of either SY or BC, and an Order against Hackney and Mr White for production in respect of the “day books for the period July 1990 - March 1995” was made at a hearing for directions on 22 January 2001.  Hackney and Mr White, represented by Mr Kibling, appeared at the outset of this appeal and produced all the pages of Mr White’s notes which appeared relevant, and indeed were willing to, and did subsequently, provide some further pages on request.  I shall return to them below.  

(iv)  Leave was given during the hearing, without active opposition from SY, to admit various, more peripheral, items, an abstract of Mr Onuoha’s employment records, various pie charts and a Home Office briefing paper.

We declined, during the course of the hearing, to make an Order for production, against SY’s opposition, of his naturalisation application form, to which I shall refer further below, in relation to the Warnock issue, nor did we give leave to BC to adduce certain evidence in relation to SY’s employment history.

12.	The background of the case is the very serious nature of the frauds being committed in respect of housing and benefits in Hackney in the late 80s and early 90s. When BC, as the new Director of Housing, as from July 1990, took office, he had a successful track record in other boroughs, and had a very clear brief from the Council, and a determination, to tackle and eliminate such fraud, so that what was a massive haemorrhage of local authority money, and an enormous diversion and wastage of Council accommodation, which was thus not available for those who needed it, could be ended. BC had the belief, rightly as it turned out, that such frauds extended into the recruitment and employment of Council staff itself, who would thereby facilitate or co-operate with the operation of the housing and benefit frauds; and with the assistance of his own staff he was determined to root out corruption and to improve the systems which he saw as being abused. In a passage from a later report commissioned by Hackney in 1995 by Ian MacDonald QC, which was before the Tribunal, BC was described as “Captain Ahab relentlessly pursuing the great white whale”. Much of the context of the facts in this case relating to the period between October 1990 and October 1993 derived from the conflict between two very determined men, BC, the Director of Housing, committed to carrying out his investigations, convinced of the rectitude of his position, and to protection of his own inquiries and of his own staff and systems, and SY, as Head of Personnel Services, equally committed to protecting his own department, his own staff and his own procedures and systems.  Once inquiries and disciplinary and then appeal hearings were launched and continued, both men became the more entrenched in their positions.  

13.	The grounds of appeal, prepared by BC himself, have, as a result of the various preliminary hearings, been clarified and amended. They can be shortly summarised by reference to the following:

(i)  the Tribunal’s exclusion or disregard of evidence (particularly that of Councillor Hibberd and the White notes); and/or the need for a re-hearing in the light of such cogent fresh evidence now admitted.

(ii)  the Tribunal’s perversity and/or erroneous approach to the onus of proof.

(iii) with particular relevance to the Warnock and Police List cases, the second and third appeals (as indeed to the Private Eye case, had it proceeded), the absence of primary facts on which inferences of racial discrimination could be drawn.

(iv)  errors of law in relation to “knowingly aiding”, comparators, privilege or whistle-blowing and detriment.

(v)  a separate case in relation to the quantum of compensation.

RECRUITMENT FRAUD
14.	I turn first therefore to consideration of the issue of Recruitment Fraud, which, as will be seen, underlies the other issues, which is the subject matter of twenty-one of the thirty eight identified allegations, and in relation to which the missing evidence of Councillor Hibberd and the White notes is crucially relevant.

15.	The thrust of BC’s main attack on this appeal relates to a meeting of 22 October 1990, called by Councillor Hibberd and attended by her, BC and SY. The Tribunal’s first Decision in this regard sets out at paragraph 117 (A) (ix) BC’s allegation with which it is dealing:-
“That [BC] and Councillor Hibberd raised concerns about rigged interviews with [SY] but despite assurances that [SY] would look into these matters, [SY] never undertook any investigation, and subsequently denied to Councillor Hibberd that he had said that he would respond to her concerns. This is a reference to the alleged complaint by Councillor Hibberd to [SY], at their meeting of 22 October 1990, that Mr Amadi [an employee of Hackney] was influencing the recruitment of staff by coaching, or providing references or otherwise.[BC] asserts that Councillor Hibberd raised this matter at this meeting where Councillor Hibberd, [SY] and [BC] were the only persons present. The only two witnesses we have heard about this are [BC] and [SY].  [SY] asserts that the matter was not raised at this meeting.”

16.	SY’s case, as accepted and found by the Tribunal was as follows:-

(1)  BC’s handwritten note of this meeting, which includes reference both to Peter [Amadi] (“Doja [Labinjo] speak to Henry Kaleem [Amadi’s superior] “about moving Peter”) and to Petadist, an entity suspected to be (and in fact) established by Amadi, was fabricated, and:-

(i)  BC’s account of the meeting was false;

(ii) BC fabricated the note, and therefore was the sort of person who would fabricate a document, such as to redound to his discredit.  

(2)  There was thus no mention at the 22 October 1990 meeting of Amadi or his entity, Petadist, whether as involved, or suspected to be involved, in the systematic provision of, or assistance with, false referees for, and coaching of, applicants for jobs with Hackney, or otherwise.  

Paragraph 117(A)(ix) concluded as follows:
“All the evidence leads us to conclude that the matter of Peter Amadi or Petadist was not raised, as Mr Crofton alleges, at the meeting of 22 October. Insofar as the note produced by Mr Crofton suggests that it was, we consider that that is not an accurate note, we consider it to be a recent fabrication.”

(3)  There was therefore no question of SY being asked by Councillor Hibberd at that meeting to look into such fraud, or suspected fraud, and of his failing to do so.  

(4)  In fact, as the Tribunal found, such systematic recruitment fraud (as opposed to individual frauds) “only began to emerge” in early 1995, and immediately SY took steps to deal with it (paragraph 119 of the first Decision).  

(5)  Therefore BC had no grounds for his criticism of SY, and BC was knowingly then and thereafter making false allegations.

(6)  Therefore the only inference to be drawn as to why he was making such false allegations was racial, particularly given that the frauds which were revealed were largely committed by West Africans, and SY was West African in origin.  

17.	I set out in the following lengthy paragraph some of the material evidence on Petadist/Amadi, and will then turn to show how, if at all, this was dealt with by the Tribunal:-
(i)  Councillor Hibberd’s October Evidence
Councillor Hibberd gave evidence to BC’s disciplinary hearing in relation to the meeting of 22 October 1990 on 24 February 1995, and the transcript includes the following relevant evidence (LH is Councillor Hibberd: the transcript is recorded in the third person, rather than the first and second):-
“LH: ….On 2 October 1990 there had been four different sittings in relation to the appointment of Rent Recovery Manager …….
BC: ..Had she become concerned about the level of knowledge of candidates about the questions? 
LH: She had been very concerned at the first interviews that a person had answered the questions parrot-fashion.  Members had had model answers to the questions involving technical issues and one individual had answered as if they had been handed that paper. …
BC: Had she felt pretty certain that the candidates had had access to the questions and answers?  
LH: She had felt 90% certain.  
BC: Were there other examples of this?
LH: This one had stood out. She had disqualified one application as it comprised the job description with only a name. Another application had been disqualified because of question marks over the reference. The reference had come from Pertardis [sic]. [Doja Labinjo] and the Race Relations Adviser [Whittingham] had both laughed, as this was Peter Amadi’s Housing Association. She had asked [Doja Labinjo] to speak to [SY] about her concerns that someone was sitting on panels and giving references for candidates. This had been her first experience of this.
BC: But it had been known to [Doja Labinjo and Whittingham]? 
LH: Yes. Doja had said that he had given references before and she had been concerned about whether there was a conflict of interest…
…
BC: In relation to Pertardis, had she referred the matter to [SY]?
LH: She had asked [Doja Labinjo] to refer the matter to [SY] and asked for her to come back with confirmation that the person had declared their interest.

BC: Did [Doja Labingo] raise this with [SY]?  
LH: Yes, but she had no proof of this but Doja had told her that she had done so…
BC: ... Had there been any feedback on what Personnel were doing to address the issues raised?
LH: No. On Pertardis she had requested a meeting with [SY] and him [BC] as the Director of Housing.  …
BC:… wished to go back to their meeting in October 1990 with [SY]. This meeting had been in [SY’s] office. 
LH: Yes. It had been held on 22 October 1990.  
BC: What had they discussed?
LH: Her first concern had related to references and the fact that a person working in a Race Relations Unit was giving references. [Amadi worked in such a unit].
BC: Was [SY] familiar with Pertardis?  
LH: Yes, he knew about it. He had made no comment about the Housing Association being in that name but had said yes, there was a conflict. He had produced the Code of Conduct and said that it was woolly on this issue.  
BC:  But he was well aware of this?  
LH: Yes.  
BC: Was there another issue raised in relation to Amadi?
LH: Yes, she had been concerned that Amadi was sitting on shortlisting and recruitment exercises whilst this was being sorted out. She had also received information from an estate cleaner that he had seen a wad of job applications in the bin where Amadi lived. He, [BC], had asked the cleaner to get the application forms, but the bins had been emptied. He had told [SY] and he had just written this down with no comment.
BC: What was the conclusion of the meeting?  
LH: She had been very unhappy. No assurances had been given about what would be happening. She had asked him,[BC], to press to get the matter sorted out in relation to Amadi’s conflict of interest.”

As it is common ground that the meeting of 22 October 1990 was called by Councillor Hibberd, BC submitted that it would be extraordinary if, now that she had SY with her, Councillor Hibberd had not raised with him the matter of Amadi and Petadist, which she had, on any basis, already raised with Doja Labinjo (“Doja”) for her to discuss with SY.  SY accepts that Doja had raised with him, at that time, Councillor Hibberd’s allegations against Mr Amadi; but his case is that she had not mentioned, when doing so, Petadist, and if she had, he would have known that that was Amadi’s entity. SY gave evidence at the Tribunal that allegations from Councillor Hibberd had indeed been passed on to him by Doja, about application forms being found in Amadi’s dustbin, and of coaching of candidates and the suspected passing, by Amadi, of interview questions to candidates, and that he: 
“did raise it with Henry Kaleem,[who] said he was not prepared to transfer Mr Amadi without evidence that he was engaged in some improper conduct, and so that was the end of it.”

The possibility of transferring Mr Amadi was specifically recorded in BC’s fabricated note. There was, however, according to SY, no discussion of any of this at that meeting with Councillor Hibberd and BC on 22 October 1990, not even of his proposing to speak to Mr Kaleem or, if he had done so already, reporting back what Mr Kaleem had said, or canvassing whether, in the light of the allegations, this negative reaction of Mr Kaleem was sufficient.

It is however plain, from the lengthy passage quoted above, that the evidence which Councillor Hibberd gave to the disciplinary hearing was that both Petadist and Amadi were discussed by her with SY and BC at the 22 October hearing.

(ii)  Mr White’s Note of 24 October 1990
Mr White, the Chief Executive, had a note of a meeting between him, Councillor Hibberd and the Leader of the Council, Councillor McAfferty, which is recorded by him as follows:-
“Chair Housing: Peter Amadi and African applicants for jobs in Housing …Patardis [sic] is Peter Amadi’s Housing Association. Has a stack of job application forms in Wood Green where he helps people fill them out. Sam [i.e. SY] said investigation needed into Patardis. Me, [BC], [Craig] … need to meet - now with Sam.”

Mr White gave evidence for Hackney after the close of both SY’s and BC’s cases. In circumstances to be discussed further below, this note of Mr White (and other such notes) was not produced until he went in to the witness box, and was itself not permitted to be adduced in evidence by the Tribunal, which, as will be seen below, simply permitted BC to peruse Mr White’s notes without ordering their production; so that BC was thus able to cross-examine Mr White only by reference to his recollection of such perusal, but was not allowed to rely on the notes themselves, and in particular he had no opportunity to cross-examine SY, or to give evidence himself, in relation to them. Nevertheless, even within such limited ambit, Mr White accepted, in cross-examination by BC, that the inference from this note of 24 October was that Councillor Hibberd had spoken to SY about Petadis. If so, then the only occasion can have been the 22 October meeting, two days earlier.
(iii)  Mr White’s Petadist evidence
One of the only, if not the only, note by Mr White that was, selectively, disclosed prior to the hearing, and included in the Tribunal bundles, was Mr White’s handwritten note of the meeting of 29 October 1990. This was a meeting attended by a number of the Hackney officials, including, apart from Mr White, Messrs Craig and Bundred, SY and his superior, Mr Sugrue, and BC and his assistant, Mr Hall. The notes are clearly not verbatim, but BC is recorded as saying: “RRA’s [Race Relations Adviser, i.e. Amadi’s] role in recruiting and allegations of key selling”. Further down, SY is recorded as saying “[Doja] had made [him] aware of allegations concerning Peter Amadi. Integrity of recruitment process crucial”.

As a result of such meeting an internal memorandum by Mr White, dated 30 October 1990, was circulated setting out the action agreed. Paragraph 4 recorded as follows:-
“ROLE OF AN OFFICER IN THE RACE RELATIONS UNIT

[SY] to arrange for the investigation by Joy Adrien of selection processes involving an individual Officer within Race Relations Unit over the past year. If there is a prima facie case of manipulation of the selection process, papers to be passed ... for management action.”

Mr White’s evidence at the Tribunal with regard to this meeting of 29 October 1990, as recorded in the Claimant’s notes, was as follows:-
“BC: But there is no record there in paragraph 4 of an investigation into [Petadist]?
JW: It was all covered by “manipulation of the selection process” by this officer, it would have been included any manipulation.”

(iv)  Mr White’s note of the slide show
Paragraph 3 of the same memo required Housing Management (under BC) to scrutinise the eighteen recent successful job applications for the position of Rent Recovery Officers (an important position, responsible for collection of a total of £42 million per annum). As will appear below, BC uncovered a good deal of suspicious material, particularly in relation to apparently questionable referees in these job applications.  After completing the first stage of his enquiries, BC gave a presentation, including a slide show of some of his findings, at a meeting on 18 January 1991, attended by a number of Councillors and officials, though not including SY, among others the Leader and Deputy Leader, Councillor Hibberd, as Chair of Housing, with her Vice-Chair, BC and his assistant, Mr Hall, Mr Bundred and SY’s superior, Mr Sugrue. Mr White again made a note. I shall return to this note below, but for these purposes refer only to one passage recording part of that meeting, in which Mr White records:-

“Councillor Hibberd - raised Peter Amadi with a number of officers - allegations that he runs a Housing Association called Patardis [sic].”

(v)  Councillor Hibberd’s January Complaint
It is clear from one of SY’s own notes, dated 22 January 1991, that Mr Sugrue reported back to him as to what had occurred at the meeting on 18 January, which SY had not attended. The relevant part of SY’s note of what Mr Sugrue had told him had occurred at that meeting is as follows:-
“18th Jan meeting with [White, BC etc]. Chair of Housing stated that she had [asked] [SY] to investigate Petadi [sic] Housing Association and that she has not heard anything since.”

SY’s note continues:-

“Check notes of meeting and write to [Sugrue].”

SY says that he checked his note of the meeting he had had with Councillor Hibberd and BC on 22 October 1990, and found no reference to Amadi or Petadist. Plainly one would expect some explanation as to why the issue should have been whether or not his note included such a record, rather than his simply taking steps, now at any rate, to make the investigation into Petadist, given that he knew Petadist was Amadi, even if he had not been previously asked to do so by Councillor Hibberd; or, alternatively, responding to say that he had, albeit that he had not so told Councillor Hibberd, spoken to Henry Kaleem, who had given a negative reaction, as set out in (i) above.  

(vi)  The Adrien Report
This was a one page document (with short one page annexe) provided by Ms Adrien to SY, on 22 January 1991. It made no reference to Petadist at all, nor to the allegations about dustbins etc. It seems from a memorandum which SY sent to Mr White on 7 February 1991 that, when he received that document, he asked Ms Adrien for further information, but this was limited to checking the outcome of selection interviews in which Mr Amadi was directly involved, to see what proportion of successful candidates was of African origin. Notwithstanding Councillor Hibberd’s request, recently reiterated, there was no addressing of Petadist. SY’s conclusion in his memorandum was:
“It would appear that the allegations of corruption and malpractice being labelled at [Amadi] are manifestly unfounded, at least as far as his role in the selection processes in Housing is concerned.”

(vii)  Councillor Hibberd’s Renewed Complaint.
Councillor Hibberd’s evidence at the disciplinary hearing on 24 February 1995, to which I have referred above, included the following:-
“BC: In relation to item 4 [of the 30 October memo by Mr White, setting out the steps to be taken pursuant to 29 October meeting] and the reference to P Amadi … was there a preliminary investigation into possible malpractice by P Amadi within the recruitment selection process? The memo in reply was only about the percentage of successful applicants that were of African origin. Had she been surprised by this reply?
LH: No, there had been a large percentage of that group applying for these jobs.
BC: But had she been surprised that it had not related to Pertardis [sic] and other issues raised?
LH: Yes.
BC: What had she done?
LH: She had spoken to [Sugrue], stating that she had not received a response in relation to her concerns.  He had gone and brought [SY] to the meeting.  [SY] had denied that he was to get back to her.  She had stated that she had raised the matters with him and that he had said that he would get back to her.  She had also raised the issues with the Chief Executive [White] when the Leader was present.  There had been a discussion about Pertardis. [SY] had denied that it was for him to get back to her and Kevin Sugrue had agreed.”  

Again this requires some explanation by SY, not least as SY accepts that he knew that Petadist was Amadi’s entity; such that even if Petadist had not been mentioned to him prior to 22 January 1991, he would immediately have known the connection, to add to what, on any basis, Doja, if not Councillor Hibberd, had told him the previous October.

(viii)  The Williams Letter
In March 1991 a letter was passed on to a Mr Gibson of Audit at Hackney by the Fraud Squad, which had apparently been sent by a Jennifer Williams to the Under Secretary of State at the Home Office. This letter read in material part as follows:-

“Dear Sir

This is to report an organised crime by a Nigerian gentleman called Mr Peter Amadi. Mr Peter Amadi is employed as a Race Relations Officer with the London Borough of Hackney, Housing Department. …. Mr Amadi is among the panel that does shortlisting and interviewing, particularly in Housing Department.  Mr Amadi uses his position in the Council to recruit illegal immigrants from Nigeria to jobs in the Hackney Council after collecting hundreds of pounds from them. Mr Amadi uses an illegal organisation which he formed for this purpose. The organisation is called “Petadists Housing Association” which is derived from his name Peter. The office of the organisation is at 1 Lyttleton Road, Wood Green, London N8 … Mr Amadi’s Housing Association opens two Saturdays in a month only, between 4 pm to 7.30 pm. In this office, Mr Amadi revealed all the questions and answers prepared by the Panel of the Hackney Council to those people who paid him for against [sic] their forthcoming interview.”

SY submitted to us that the contents of this letter were different from what had previously been raised, because of the reference to illegal immigrants and to payment of hundreds of pounds, but on its face it does not appear to be materially, if at all, different from that which has been referred to above.  

(ix)  SY’s 4 April Note
SY has noted a meeting with Mr Sugrue on that day as follows:-
“Doja to see [White/Sugrue] re Rent Recovery Officers. Chris Gibson to meet [Sugrue and SY] re letter from Jennifer Williams: letter alleging malpractices in the appointments area.”

(x)  Sugrue’s Memo to Kaleem.
On 5 April 1991 Mr Sugrue sent a memo to Mr Kaleem, Mr Amadi’s manager, which, in material part, read as follows:-
“STRICTLY PERSONAL AND CONFIDENTIAL.
PETER AMADI – RACE RELATIONS ADVISER (HOUSING DEPARTMENT).
You may be aware of allegations that Mr Amadi has assisted candidates to obtain employment within the Council (specifically the Housing Directorate). At the request of the Chief Executive, [SY] organised an investigation into this “Personnel” issue and there was no evidence to substantiate the allegations. I have asked [SY] to provide you with a confidential copy of the findings.  
However, there are, in addition, allegations that Mr Amadi has an involvement with Patadis [sic] Housing Association and that this involvement may be in conflict with his responsibilities here. That is an issue for management investigation and I am afraid, therefore, falls to you I shall ask [SY] to give you some advice on how to proceed.  
I should point out that the Chair of the Housing Committee [Hibberd] has asked for this alleged connection with the Housing Association to be investigated. You can either let me know your findings and I will pass them on to her, or by all means, contact her direct. Irrespective of the Chair’s involvement, I do think that the rumours have reached a level where it is necessary and in everybody’s interest (including Mr Amadi) that this issue is sorted out properly once and for all.”

This letter is written after receipt by Hackney, and, as appears from SY’s note of the day before, actual knowledge by Mr Sugrue, of the Williams letter, although no mention is made of it. SY’s case is that this memo did not arise out of receipt of the Williams letter, but out of a meeting which he and Mr Sugrue (‘KS’) had had with Councillor Hibberd, which on his case must be that referred to by Councillor Hibberd in her evidence at the disciplinary hearing referred to in (vii) above, and as to which he gave evidence at the Tribunal as follows:

“BC:  … Do you know why KS wrote at that time?
SY: Because [KS said that] Councillor Hibberd had asked me to investigate the Petadis Housing Association and I had failed to do so. Councillor Hibberd had said to KS that I [had not done] an investigation because I went to college with Amadi. KS told me that. I found that accusation deeply offensive. I said I thought Amadi was educated in Nigeria and Dublin. I told him I have never set foot in Dublin and I have never been educated in Nigeria. It was then that KS took me to confront Councillor Hibberd. I made it very clear that she had never asked me to conduct the investigation and KS wrote this memo following this discussion.”

Even  on this basis, there requires to be explanation as to at least the following:

(a) why the memo refers to an “alleged” connection between Amadi and Petardis when SY and Doja (and others) knew perfectly well that there was such a connection:
(b) why there was no mention of the fact, as per SY’s case, that SY had already raised the matter with Mr Kaleem the previous October, after Doja had raised it with him:
(c) why this step should now be taken, if it was not in response to the very recently received Williams letter.  

(xi)  11 April Meeting
SY made a note of a meeting on 11 April between himself, KS and Gibson “re PA (Housing)”, which reads as follows:-
“SY to check whether [Amadi] was involved in the May/June appointments of Rent Recovery Officers. Let [Kaleem] read the [Williams] letter but no copy.  [Gibson] to pursue investigation into Petadist organisation. [Gibson] to do an interim report to the Police on our internal investigation.”

(xii)  White 28 May Note
There is a note by Mr White of a meeting between him and, among others, the Leader and Mr Craig which reads as follows:-
“Housing Fraud. Clean up the corruption and then move out of old HQ to neighbourhood? Sam’s [i.e SY’s] acquaintance with Peter Amadi - did this come out in Chris Gibson’s interview?”

(xiii)  White 11 June Note
There is a further note by Mr White of a meeting on 11 June 1991 attended by, among others, himself, the Leader, BC, Mr Bundred and two police officers, recording amongst other matters:-
“Police Enquiries ... adequate police resources will be made available. Police happy with liaison with Council. Charges not likely to be brought quickly - corruption charges need permission of Attorney General before being brought.”

As will be seen, police enquiries into fraud and corruption in Hackney continued for a further two years. The first sign of their involvement in Mr White’s notes, to which I shall return below, was in his note of the “slide show” meeting on 18 January 1991.  

18.	In the light of this substantial evidence, I turn to deal with the approach and conclusions in this regard of the Tribunal. The most important aspect to deal with first is the position of Councillor Hibberd. As appears above, she had given substantial evidence at the disciplinary hearing on 24 February 1995. BC had intended to call her at the Tribunal, and, in relation to this issue, he had simply intended that she should repeat the evidence that she had given at the disciplinary hearing. It is quite plain to us, not least from the helpful analysis of the history set out by Ms Monaghan in her Skeleton Argument, that there were difficulties, delays and promises in relation to the calling of Councillor Hibberd, with a number of different, and sometimes conflicting, excuses as to why she was not in a position to be called. By the close of BC’s case, she had not been called, and the Tribunal agreed that she could be called later, so BC closed his case on 24 November 1997 subject to that. It is apparent that by 11 December 1997 the Tribunal was becoming impatient. A day had already been lost on 1 December, when it was anticipated that she would attend, and by 11 December Mr Craig, for the Council, had finished his evidence and Mr White had commenced (on the 10th). At the close of the hearing on 11 December, BC was still uncertain as to when Councillor Hibberd would attend, and the following exchange is recorded in the Hackney solicitors’ transcript of the hearing, the references to CK being to Mr Kibling, Hackney’s Counsel, and to KM being to Ms Monaghan:-  
“[TK]: My next witness will be Paula Charker and will be longer than a day. If Councillor Hibberd isn’t here, then I shall have to make an application in relation to my witnesses.
Chairman:  We have already lost so much time.
[TK]: What I am saying is that if there is only one day then I don’t need to call my witness; instead, Councillor Hibberd could be called that day.  
KM:  It does raise difficulties, the evidence that she may or may not give. And I do not know whether I should put to Mr White the issues which I think she may raise. Or to leave it, as she might not come to give evidence at all.  
Chairman:  But if the Tribunal says [addressing BC] we think you ought to make an application, we will consider that. Be prepared to make an application whether or not Councillor Hibberd should be called; it may be already too late to consider to call a witness out of time.”

Mr White’s evidence however in the event still had another seven days to run, not concluding until 19 December 1997, and Hackney’s next witness, the Ms Charker of whom Mr Kibling spoke, was not called until 19 January 1998.  

19.	On the next day, 12 December 1997, as adumbrated, the Chairman required BC to make an application in relation to Councillor Hibberd, and BC concluded such submissions, according to the Hackney solicitors’ transcript as follows:  
“I have always wished to call this witness to give the evidence in the statement. The worst that can happen, if that is permitted, is that the other side have to apply for you to recall [White] or [Craig] so that any unfairness that arose from this turn of events can readily be remedied. I do not expect that to happen, but this would be a way of securing a just outcome. It would not lead to the exclusion of evidence which the other parties have had for seven months.”

There is a dispute (and no record in the solicitors’ transcript) as to whether BC sought, at that stage, a Witness Order to enforce Councillor Hibberd’s attendance; but in any event, there is no record of the Tribunal suggesting such a course as a possible solution. The outcome was that Councillor Hibberd’s evidence was debarred, notwithstanding that:-

(i)  The hearing had already run since 9 April 1997, and was to run for more than another three months, through to the end of March 1998:

(ii)  BC was unrepresented:

(iii) BC had already been permitted to close his case, subject to calling Councillor Hibberd later:

(iv) Considerable flexibility, particularly in relation to unrepresented parties, is permitted by Rule 9:

(v)  BC’s position of being sandwiched between SY and the Council, as discussed above, could have been taken account of: and in any event, as he himself submitted, witnesses could have been recalled, particularly in the context of such a long running hearing:

(vi) Councillor Hibberd’s evidence was, as SY has accepted in argument before us, “absolutely crucial”: and the nature of it was known.

We have every sympathy with the Tribunal faced with the problem which the Chairman set out clearly in his own judgment, of the apparent shilly-shallying in relation to the calling of Councillor Hibberd, but there is no suggestion, and was no finding, that personal culpability in relation to the non-appearance of Councillor Hibberd lay at the door of BC, and, in any event, as discussed, there was at any rate the availability of a Witness Order, which either was canvassed and refused, or could or should have been canvassed. In any event, we have allowed, as set out in paragraph 11 above, the application to adduce fresh evidence on this appeal in respect of the evidence which it is submitted Councillor Hibberd would have given, by reference to her recorded evidence at the disciplinary hearing, and (now) by reference to the contents of Mr White’s notes, to which we refer further below.

20.	However the position does not stop there:-

(i)  In debarring the calling of Councillor Hibberd as a witness, the Chairman expressly said as follows:-
“We will read the Notice of the Disciplinary Sub-Committee where Linda Hibberd was involved. We will not read the witness statement from Linda Hibberd. This is merely an indication of what she anticipated she would say, and the other parties object to our reading it.”

Immediately afterwards, when the Chairman announced an adjournment, Ms Monaghan herself then fairly suggested:-
“You may wish to use this time to read the extract from the disciplinary sub-committee, relating to Councillor Hibberd.”

There is not a word in the Decisions of reference to the evidence of Councillor Hibberd and, in particular, to what I have set out in paragraph 17(i) above (“Councillor Hibberd’s October evidence”) or in 17(vii) ( her renewed complaint”).

(ii) There is, however, the following passage in the first Decision at paragraph 117(A)(ix), some of which I have quoted in paragraph 15 above. I set out the relevant extract from the first Decision with my own underlinings:-
“This is a reference to the alleged complaint by Councillor Hibberd to [SY] at their meeting of 22 October 1990 that Mr Amadi was influencing recruitment of staff by coaching, or by providing references or otherwise. [BC] asserts that Councillor Hibberd raised this matter at this meeting where Councillor Hibberd [SY] and [BC] were the only persons present. The only two witnesses we have heard about this are [BC] and [SY] … Furthermore, there would simply be no reason for [SY] not to address the Peter Amadi issue, if it had been raised, at the meeting of 29 October 1990. Of course, if it had been raised and [SY] failed to investigate it, it would serve as an instance of [SY] ... protecting from investigation another African who was suspected of corrupt behaviour. Thus it would serve [BC’s] purpose by casting suspicion on [SY].”

This seems to us to be a somewhat extraordinary passage:-
(a)  the reference to “the only two witnesses we have heard” not only makes no reference to the fact that BC would have liked to have called Councillor Hibberd, and that, had she been called, she would have been likely to have given the evidence which she had in fact given orally, in formal surroundings, at the disciplinary hearing in February 1995: but more important still, it, and the concomitant reference to the alleged complaint and to BC’s assertion, pays no apparent regard to the content of the evidence which the Tribunal knew that she did in fact then give, and which the Chairman had said that the Tribunal would admit and read, which plainly needed to be dealt with, if only to be disbelieved or explained away.  

(b)  The last part of the quoted passage emphasises the importance of Councillor Hibberd’s evidence and of BC’s (rejected) account: i.e. if (as both BC and, had her evidence been given weight, Councillor Hibberd, said) the issue had been raised (and not only on 22 October 1990 but, in the context of further complaints by Councillor Hibberd, thereafter), then that would have, in the Tribunal’s view, given foundation for BC’s attitude and belief, i.e. it would have been (or served as) an instance of something to cause BC concern.

(c)  Particularly in the light of the existence of Councillor’s Hibberd’s evidence so disregarded, but in any event, we find the Tribunal’s choice of language, as to “serving [BC’s] purpose” surprising.

21.	The exclusion or disregarding of the evidence of Councillor Hibberd is exacerbated by the position in relation to Mr White’s notes. These notes were excluded by a ruling given by the Chairman on the morning of 11 December 1997, i.e. the very day on which, at its close, the issue of Councillor Hibberd’s evidence was raised, followed by the exclusion of that evidence on the following day. Thus when Councillor Hibberd’s evidence was excluded it was known that Mr White’s notes were not to be adduced in evidence either. This arose in the following way. As I have indicated above, at least one page of Mr White’s notes had been disclosed by Hackney, prior to the hearing, namely his notes of 29 October 1990. When Mr White came to give evidence on behalf of the Council, i.e. after the close of both SY’s and BC’s case, it became apparent that he had many more notes. BC was given the opportunity of inspecting the notes that he had brought with him, and took several hours to do so. He flagged up some fifty pages that he wanted copied, and wanted to adduce in evidence. Mr White resisted this, Mr Kibling, Counsel for Hackney, acting as his Counsel for the purpose. There were submissions, in which issues were raised as to whether Hackney was at fault in not having produced the notes before, and as to the ownership of the notes. The Tribunal decided to hold a trial within a trial in relation to the ownership of the notes, and the conclusion of the Chairman was that, although the blank notebooks were purchased and supplied by Hackney, they were not, at any rate now, the property of Hackney and were not within Hackney’s power, such that Hackney had not been under a duty to make discovery of the notebooks. The Chairman concluded his ruling as follows:-
“We have regard to Rule 9 of the Industrial Tribunal Rules. Our unanimous view is that it would not be appropriate to the just handling of these proceedings for [BC] to be permitted to introduce these fifty pages of documents now as part of his case. The result is that Mr White can keep his notebooks to himself. He does not have to show them to [BC] any further…[BC] has already seen all the notes before Mr White objected. That cannot be undone. Our ruling does not prevent [BC] from cross-examining on any relevant matter.”

The result was that BC did not have copies of the pages he had flagged, and was only able to ask questions in cross-examination of Mr White, without the pages which BC wanted to refer to being put in evidence in the bundle. As to this ruling:-

(i)  We find the conclusion that the notes were not the property of Hackney, and/or in any event were not within its power, strange.

(ii) However, even if such be right, that does not seem to us to be in any way determinative. The notes were there in Court, and Rule 9 is sufficiently flexible to have allowed them to be adduced, irrespective of whether they should have been previously disclosed, particularly given the importance of the contents of the notes, and the fact that at least one of the notes had already been included in the bundle, and the fact that BC was unrepresented, and that he had closed his case without sight of them. 

(iii)  In any event it seems to us that Rule 9 would not have been the end of the matter, but that there could and should have been consideration of the provisions of Rule 4(2) namely:-
“(2) A tribunal may, on the application of a party … or of its own motion ...
(b) … require the attendance of a person … to produce any document relating to the matter to be determined”

which, together with the flexible powers under Rule 9, could have enabled production of the documents irrespective of their ownership, possession, custody or power, given that Mr White was actually before them with the documents already inspected by BC.  

22.  	In any event the result was that the notes that BC wanted in evidence were not put in evidence, and some questions were asked by him in cross-examination about some of them.  Not only were the notes thus not properly before the Tribunal, but, both for that reason and because of their late production, in any event no opportunity had been given to BC to give evidence about their contents himself, or, in particular, to cross-examine SY about them. Had the notes been admitted, no doubt by reference to their obvious importance it would have been just to have allowed recall of BC and SY to enable such course to be taken.  

23.	There is no reference in the Decisions either to these notes or to their contents, even where they were cross-examined on, such as the important note referred to in paragraph 17(ii) above (“Mr White’s Note of 24 October 1990”). As set out in paragraph 11(iii) above, we gave leave to adduce these notes by way of fresh evidence. BC did not have a copy of the fifty pages he had originally earmarked, and there was production by Mr Kibling at the outset of this appeal. Most, if not all, of BC’s stickers still remained on the notes, so that those and, I believe, a few extra, were adduced and copied; and twelve pages in particular have been included in our bundles, relating to entries for 24 and 25 October 1990, 16 and 18 January, 17 and 20 May and 11 and 13 June 1991. We are conscious that neither SY nor BC has been able to give evidence or cross-examine about the contents of these notes.

24.	Against this background I turn to deal, in relation to each of the sub-paragraphs in paragraph 17 above relating to Petadist/Amadi, with how they were addressed (if at all) by the Tribunal in its Decisions:-
(i)  Councillor Hibberd’s October Evidence 
As set out in paragraph 20 above, the Tribunal did not deal with this at all. This alone seems to us to create a fundamental flaw in the seminal conclusions set out at (1) to (6) in paragraph 16 above.  

(ii)  Mr White’s Note of 24 October 1990
Similarly so, in respect of this note, which would appear to be wholly corroborative of the evidence which Councillor Hibberd would have given, supportive of BC’s account. The note is relevant not only to the issue of the early mention of Petadist, albeit not, on that day, in the presence of SY, though corroborative of its having been previously so mentioned, but also, as in respect of so much of this evidence, and more to which I shall refer, relevant to the issue of whether systematic recruitment fraud can be said to have only begun to emerge in early 1995. As set out in paragraph 23 above, the note is not addressed at all by the Tribunal.

(iii)  Mr White’s Petadist Evidence.
As to the 29 October 1990 meeting, the first Decision records in paragraph 117(A)(ix) the content of Mr White’s note, but does not address the evidence he gave that Petadist was covered.  

(iv)  Mr White’s Slide Show Note.
Again not mentioned in the Decisions, and again relevant in the context of systematic recruitment fraud emerging, and plentiful discussion of Petadist (which SY knew to be Amadi’s).

(v)  Councillor Hibberd’s January Complaint
Councillor Hibberd’s own evidence, given at the disciplinary hearing, was, as set out above, entirely ignored. However there was also no mention by the Tribunal of SY’s own note of 22 January, or of the significance of the obvious and contemporaneous dispute with Councillor Hibberd, and the oddness of it, given that by then if not before, it was clear to SY that Councillor Hibberd was concerned that Petardis might be Amadi, and he knew that that was so, and yet was concentrating on the issue as to whether the matter had been mentioned to him earlier, rather than the need to investigate.  

(vi)  The Adrien Report.
The first Decision states at paragraph 117(A)(ix):-
“The matter was properly investigated by Joy Adrien, as instructed, and no complaint was made to her about her report, though it was sent to [BC].”

The matters set out in paragraph 17(vi) above are not addressed.  

(vii)  Councillor Hibberd’s Renewed Complaint
Because all of Councillor Hibberd’s evidence at the disciplinary hearing was apparently disregarded, there was again no reference to this seemingly important evidence.  

(viii)  The Williams Letter (see also (xi) below)
Reference to this is in the same sub-paragraph, 117(A) (ix), of the first Decision, namely:-
“The matter of Mr Amadi was only raised again when a letter had been written to the Secretary of State regarding him, and this was referred to Internal Audit.  At that stage, [SY] attended a meeting with Mr Sugrue and Mr Gibson of Audit to discuss the matter. At that time an investigation was not proceeded with because of the inadequate evidence, though it was referred to the Police.”

However:-
(a)  In the absence of any consideration of all the other matters set out in paragraph 17, this appears wholly insufficient.

(b)  No explanation or clarification or finding is made as to what is meant by “the inadequate evidence”.

(c)  Particularly by reference to what was already known, as set out above, and to Jennifer Williams’ reference to “organised crime” and the involvement of the Police, this, once again, appears wholly to flaw the suggestion that systematic recruitment fraud only began to emerge in early 1995, as to which more is to come.  
(ix)  SY’s 4 April Note.
Not mentioned.  

(x)  Sugrue’s memo to Kaleem.
No mention or explanation or findings as to this, nor as to the evidence SY himself gave as to the confrontation meeting with Councillor Hibberd.
(xi)  11 April Meeting
See (viii) above.

(xii)(xiii)  White 20 May Note and White June Note.
No mention in the Decisions. 

25.	Before summarising the position in relation to the Tribunal’s findings with regard to the issue of 22 October 1990 meeting and Petadist, I wish to set out other evidence which goes to the Tribunal’s finding of systematic recruitment fraud only beginning to emerge in early 1995, and the Tribunal’s treatment or lack of treatment of it:-

(i)  Mr White’s note of 25 October 1990, of a meeting between him and Councillor Hibberd reads inter alia as follows:-
“Councillor Akusu said that he had advised [Mr Thea] that there had been some funny goings on - Peter Amadi approaching [Doja] to get staff in by the back door. Councillor A had advised applicants how to fill in forms etc … Peter Amadi still in Housing. Alleged that PA had approached [Tina Sosanya] to get people jobs but she had refused.”

This was one of the fifty pages of White notes not permitted to be adduced in evidence.  

(ii)  I have referred in paragraph 17(iv) above to the slide show of 18 January 1991, when BC gave to those present the gist of his then investigations into false references etc., given by job applicants for the Rent Recovery Officers positions: many of those entities whose genuineness BC was then querying did, indeed, turn out to be involved in bogus recruitment fraud when the full report, carried out by BC’s Tenancy Audit Team, eventuated at the end of 1994. He referred to a then suspected, and later proved, bogus entity called New Ages, provided as a reference by a candidate called Ibe; a Dr Onobugu and a suspicious entity called Medpath Services Ltd were highlighted by him in respect of an applicant called Amaechi; and he pointed out an apparent connection between an applicant called Anyadi and Mr Amadi. Councillor Hibberd had referred to this slide show “in relation to fraud” in her evidence before the disciplinary hearing. Mr White in his own note (one of the fifty pages), of 18 January 1991, to which I have already referred at paragraph 17(iv) above also includes the following:-
“Political will to clear this up from top to bottom … me call in senior police officer and present evidence - resources for investigations. BC/SB [Bundred]/JR and me to meet to agree framework for involvement. Leader will want to be involved if police query member commitment or aren’t serious about the investigation.”
 
There was no mention of any of this in the Decisions.  

(iii)  There is an important note by White (one of the fifty) of a meeting of 26 February 1991 between him, BC, Bundred, Sugrue, and others with two police officers. The note in material part reads:-
“References - none received in 10 days then the job offered. Endemic fraud - matter for Management Systems. But criminal conspiracy among motivated staff also existing and this more a matter for police.”

Because this was produced by Mr White at such a late stage, and was not permitted to be adduced, once again it neither went into evidence nor, in particular, could be dealt with by BC in evidence. There was no mention of this of course in the Decisions. The significance appears to include:-
(a)  if not a conclusion, certainly a strong view of the existence of systematic recruitment fraud in February 1991, which would certainly appear to falsify any finding that it only “emerged” in early 1995;

(b)  the statement, recorded at this important meeting, and noted by the Chief Executive, that if no references were received from an applicant in ten days then a job was offered, would certainly appear to support BC’s case, rather than SY’s case, on this point: BC’s criticism having been that there was such a rule, whereas SY does not accept that there was such a rule, but rather that there was a facility to do without a reference if desired.

(iv)  I turn to the role of SY, of which BC complained, with regard to the exploration of the apparent falsity of the job applications of the various Rent Recovery Officers, with regard to whom he had made the presentation at the ‘slide show’. The letters that BC drafted and wanted sent out to suspected applicants in relation to a potential further interview were culled by removal of many of the queries about their referees and residences, including those being sent to Ibe, Amaechi, and Anyadi. There is recited in the first Decision, by reference to evidence in this regard which BC gave at the Tribunal, and elevated into one of the twenty-one allegations in relation to this topic, that (paragraph 118(C)(iii)):-
“[BC] has made the allegation, by innuendo, that [SY] caused Mr Sugrue to change the letters written to Rent Recovery Officer candidates so that significant matters likely to expose fraud were not covered.”

The issue of course, as in so much else in this application, is simply the genuineness or reasonableness or otherwise of BC’s belief, and BC did (and does) believe that SY was involved in the alteration, as he saw it, by way of watering down, of these draft letters. It is clear that SY did indeed discuss the drafts of these letters with Mr Sugrue. There is a note dated 25 February 1991 from Mr Sugrue to SY which records:-
“Attached are Bernard’s draft letters. I would like to get back to him by this afternoon (5 pm). Can you manage to see me this afternoon?”

This is indeed recognised at an earlier stage of the first Decision (paragraph 55 and 56).  The “allegation by innuendo” is said however by the Tribunal to be “untrue and [BC] had no reasonable ground for making it.” Further, at paragraph 117(A)(vii) of the first Decision, the Tribunal records:-
“[BC] was instructed to provide the information to [SY] in order that this might be done, but [BC] did not do so. Instead, some time after the meeting, [BC] began discussions with Mr Sugrue regarding the issues that should be addressed to each of the eleven candidates. It seems to us that [BC] deliberately bypassed [SY]. In consequence, draft letters were agreed.”

Mr White’s memo to BC of 4 February 1991 had suggested either a meeting between BC and Mr Sugrue and SY, or, alternatively, a meeting between BC and Mr Sugrue and then a subsequent meeting with SY. In fact that alternative course was followed, namely the meeting with Mr Sugrue, followed by Mr Sugrue’s suggestion (see his note of 25 February) that BC should draft the letters, and then, rather than the tripartite meeting, the meeting between Mr Sugrue and SY to discuss, and in the event alter, those letters. So far as we understand it, there was no evidence ever given, either by SY or by Mr Sugrue, as to the circumstances in which, and the reasons why, the draft letters were changed by discussion between them. We do not therefore follow the basis for the Tribunal’s conclusion in this respect of “deliberate bypassing” of SY, or more particularly its conclusion that BC’s belief that SY had had a hand in the deletions of which he disapproved was a belief for which he had “no reasonable ground”.  

(v)  With regard to the change in one of those letters, namely that proposed to be sent to Mrs Amaechi, BC gave evidence that Mr Sugrue had told him that SY had spoken to the purported referee, Dr Onobugu, who had confirmed that his company managed student housing. The Tribunal concluded in paragraph 105(c)(ii) of the first Decision as follows:
“We accept [SY’s] evidence that he did not speak to Dr Onobugu and there would be no reason for Mr Sugrue to tell [BC] that he had done so. This seems to us to be a recent invention by [BC], and that assists us to find that the allegation he made was not true, and that he did not have reasonable grounds for making it.”

However:-

(a) The Tribunal was wrong to say that this was a “recent invention”. BC made the same case to Mr Craig in the course of his internal investigation on 20 July 1993, in his evidence at the disciplinary hearing on 13 February 1995, and again on his appeal, in March 1995.  

(b) As set out in (iv) above, there was plainly discussion between SY and Mr Sugrue, pursuant to which Mr Sugrue responded to BC with his suggested omissions from the letters; and more particularly since SY himself suggested, in the course of his submissions, that Doja may have made enquiries of Dr Onobugu and reported back to Mr Sugrue, it seems to us that, in the absence of any evidence from Mr Sugrue, it is difficult to see how the Tribunal could have been satisfied that BC did not have the belief he asserted, and especially so where the basis for the Tribunal’s conclusion appears to have been a misconceived view that there was a “recent invention”.  

(vi) The reconvened interviews of the suspected job applicants, or at any rate those of them who turned up after receipt of (toned down) letters, took place on 17 May 1991.  The arrangement, made between Mr Sugrue and BC (as appears from Mr Sugrue’s memo to BC dated 26 February 1991) was that the panel of interviewers would consist of SY and Henry Kaleem and two Housing Management representatives, in the event BC and Mr Razaq. SY and Mr Kaleem refused to ask the questions of the interviewees which Mr Razaq had prepared, including detailed questions about referees and residence. There was an argument, and Mr Razaq and BC walked out. The following evidence is relevant:-

(a)  Mr Razaq wrote a memo to Mr White dated 17 May 1991 (the same day) in which he reported inter alia as follows:-
“I had understood that the purpose of these further interviews was to determine whether or not the four candidates had falsified information regarding:-
(a)  previous housing related experience;
(b)  previous/current employment and references;
(c) and their status in the accommodation that they claimed to dwell within.
Accordingly I spent time carefully devising a set of questions that would be asked of the candidates in order to clarify the above issues … I was therefore taken aback to learn that this process was unacceptable and both [SY] and [Kaleem] would not allow it to happen. There then ensued a debate that rapidly degenerated into acrimony and where personal slurs were made against [BC]. Given the circumstances, I felt that it would be inappropriate to continue with proceedings that had become farcical and thus withdrew. At that point [BC] also withdrew. I have no reason to doubt the integrity of any of the officers involved at today’s meeting. Nevertheless I am acutely aware of the level of corruption that is being found in Council Departments, including my own … I do believe that I have a duty to stop corruption from occurring and to that end I require support and assistance from other Directorates, not obstruction and obfustication [sic]”

(b)  A White note dated 17 May 1991, which was one of those that BC had flagged, recorded a telephone call from BC as follows:-
“Housing walked out of interviews re Rent Recovery Officers because panel would not ask questions re fraud and therefore [Kaleem] accused BC of racism.”

(c)  BC gave evidence at the disciplinary hearing that SY had called Mr Razaq a “white Asian”. Mr Razaq gave evidence at the disciplinary hearing on 16 February 1995 that he did not recall that:-
“If [SY] had called him that he would have “punched him out”. The person who had angered him most of all had been Henry Kaleem. His attitude had been outrageous. The action of [SY] which had been of concern was that as he had been leaving the meeting [SY] had been on the telephone saying that [Razaq] had only been there a few days and was already at it.”

(d)  Mr Razaq also gave evidence at the disciplinary hearing about the questions he had wanted to ask:-
“He had been going through the application forms, individually highlighting areas of concern and getting increasingly uncomfortable responses from [Kaleem]. He had pointed out clandestine names of roads for organisations and that Silver Street did not have the address given by a referee etc [this was the address given by the applicant Anyadi which was connected with Peter Amadi] and [Kaleem] had said that he did not believe him, and he [Razaq] had thought this a farce and ridiculous and had felt there was no point in continuing the discussion.”

BC had given similar evidence to the appeal hearing:-

“When I raised [Anyadi’s application] with [SY and Kaleem], just before Anyadi was to be re-interviewed, they … refused to ask about relationship to Peter Amadi (whose manager was [Kaleem]).”

This allegation of BC the Tribunal found to be untrue (though without addressing the similar and corroborative evidence of Mr Razaq) at paragraph 117(B)(iv) of the first Decision. Further, in addressing this meeting at paragraph 117(A)(iv) of the first Decision the Tribunal concludes that the allegation that SY called Mr Razaq a “white Asian” was untrue, and that BC had no reasonable grounds for making it. However, save for the purpose of reaching those conclusions the Tribunal does not address the other matters set out in (a) to (d) above. In particular, the Tribunal does not address the genuineness or reasonableness of BC’s belief, in the light of what happened at the meeting, shared apparently by Mr Razaq according to his contemporaneous memorandum, that there was, on the part of SY and Henry Kaleem, resistance to, or, at any rate, lack of a positive attitude in support of, the investigations which he wanted to carry out. 

(vii) At BC’s instance, in January 1992, Ms Linda Bellos was commissioned to investigate recruitment practice, and to attempt to improve the bad relationship between Personnel and Housing Management. She compiled a report, which was before the Tribunal. She also gave evidence on 23 February 1995 at the disciplinary hearing, in answer first to questions by a Councillor Douglas (KD), and then by BC.:-

“KD: Ms Bellos had said how poor the Personnel procedures had been in Housing. She had spoken of applications with bogus references. Did she have knowledge or evidence of the role of [SY] in that?
LB: None directly. Having drafted her report and sent a copy to [SY], she had met him within a few days and he had asked her in a very defensive way what evidence she had had to support her allegations. She had been very surprised because this had not been an accusatory report. His defensiveness had made her concerned that he would not do anything to improve the situation …
BC: Was Ms Bellos in any doubt that [SY] had understood what the problem was in relation to references?  
LB: No. He had known there was a problem. She did not know what his response would have been, but she was in no doubt that by February 1992 he had known there was a problem.”

BC was intending to call Ms Bellos. In the event he decided not to do so, on the basis that the Tribunal would read her report and the evidence she gave at the disciplinary hearing, and the Chairman agreed that the Tribunal would do so, as recorded in the Hackney solicitors’ transcript of 24 November 1997. There is however no reference to Linda Bellos or her evidence in the Decisions, and in particular none to the passage quoted above.  

(viii)  Finally, SY made a note dated 7 April 1992 of a meeting he had with Mr Barr of Audit. The note reads as follows:-
“Irregularities with respect to job applications - latest set of Rent Recovery Officers: 320 applications - systematic check to see if common references/common previous experience. Where Personnel procedures are found inadequate, then additional controls may be recommended”;

and there is a reference in the same note to Linda Bellos’s report. The Tribunal made no mention of this note in their Decisions.  

26.	In the light of the above, it is of assistance to look again at the essential conclusions of the Tribunal on this main issue of Recruitment Fraud, which I have set out in paragraph 16 above:

(1)  BC’s account of 22 October 1990 meeting between SY, Councillor Hibberd and himself is false and his note fabricated.

(2)  There was thus no mention by Councillor Hibberd or at all at the 22 October 1990 meeting of Amadi or his entity, Petadist, whether as involved or suspected to be involved in the systematic provision of, or assistance with, false referees for, and coaching of, applicants for jobs with Hackney, or otherwise.  

(3)  There was therefore no question of SY being asked by Councillor Hibberd at that meeting to look into such fraud, or suspected fraud, and of his failing to do so.  

(4)  In fact, such systematic recruitment fraud only began to emerge in early 1995, and immediately SY took steps to deal with it.  
(5)  Therefore BC had no grounds for his criticism of SY, and BC was knowingly then and thereafter making false allegations.

(6)  Therefore the only inference to be drawn as to why he was making such false allegations was racial, particularly given that the frauds which were revealed, were largely committed by West Africans, and SY was West African in origin.

27.	In respect of the Recruitment Fraud issue:-
(i) The evidence of Councillor Hibberd and the White notes are central. With them (and leave to adduce them as fresh evidence has been given) it is inevitable, or at least probable or very likely that the conclusions (1) (2) (3) and (4) above, and therefore (5) and (6) would not have been made.  

(ii)  In any event, albeit not called and tested orally, and, in the case of the White notes, not put to or explored with BC and SY, such evidence was before the Tribunal; but the Tribunal appears to have incorrectly excluded and/or disregarded such evidence probative of BC’s case. The same would apply to the other material evidence apparently probative of BC’s case with which the Tribunal did not deal, referred to in paragraphs 17, 24 and 25 above.  

(iii)  The central basis for the Tribunal’s conclusion that BC’s note of 22 October was a fabrication was by virtue of its finding that Amadi/Petadist (which featured in the note) was not mentioned at that meeting. It was not a matter of a comparison between two handwritten notes, SY’s being in a bound notebook and BC’s being loose, because it is neither necessary nor suggested that everything would have been included in either note.  Although BC’s note only surfaced shortly before the Tribunal hearing, (being then included in his belatedly disclosed list of documents), as he explained it out of the files of Hackney by whom he was still then employed, there was no forensic evidence, nor indeed is there any indication at all to us on examination of it (nor any finding in that regard by the Tribunal), that BC’s handwritten and doodled-upon note can be shown to be a careful forgery. If Councillor Hibberd confirmed (as she did at the disciplinary hearing - and why should her account not be accurate?), and Mr White’s note of 24 October 1990 (not disclosed until after BC had given evidence and unknown to him) corroborated, that SY and Councillor Hibberd did speak about Amadi and Petadist on 22 October 1990, then the only basis for an inference of fabrication would appear to fall away. Yet the finding of forgery is a serious and influential backdrop to the Tribunal’s view of BC’s credibility, to which other conclusions of “recent invention” are easily added.  

28.	There appears to us to be some doubt about the approach of the Tribunal in arriving at its conclusions (5) and (6) in any event. That methodology is of course right, as is clear from King v Great Britain China Centre [1992] ICR 516 at 528F – 529C and Zafar v Glasgow City Council [1988] IRLR 37, to which express reference was made by the Tribunal. I set out the principles and guidance given by Neill LJ in King, which were expressly approved by the House of Lords in Zafar:-
“(1) It is for the 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.

(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption “he or she would not have fitted in”. 

(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal …

(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone, “almost common sense”.  

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

29.	However the Tribunal appears to us to have adopted an erroneous approach to proof by SY of the absence of justification for BC’s belief, which was the foundation for its inference of racial discrimination:-

(i) The findings appear to concentrate on what SY did or did not do. But the central issue is and must be the belief or opinion of BC. The Tribunal’s approach to the meeting of 17 May 1991 is perhaps a good example (paragraph 25(vi) above). Particularly given BC’s brief to investigate, but also his perhaps impetuous, overbearing and Ahab-like belief in the correctness of what he was doing, he was not going to brook what he saw, rightly or wrongly, as “obfustication” (to quote Mr Razaq). In two passages in the Decisions, paragraph 124 of the first Decision and paragraph 32 of the third Decision, there is reference to the Tribunal, in the first passage inferring, and in the second passage concluding that it was clear, that BC believed that SY was “corrupt”. It is perhaps important to see how this was dealt with by BC in cross-examination by Ms Monaghan at what appears to us to be an important passage but which was not referred to in the Tribunal’s Decisions, as set out in the Hackney solicitors’ transcript:-

“KM: Do you think he was corrupt?  
BC: Could you repeat your definition of corrupt?
KM: Could he be described as corrupt in any sense?
BC: I certainly think he took his salary for a position which required him to protect the Council’s interests which he failed to do.
KM: Shall I repeat the definition of corrupt: it describes a person or persons’ acts influenced by dishonest or improper motives. Would you describe SY as corrupt in that sense?  
BC: I cannot see that his motives were to protect the Council’s interests, which is what the proper motives should have been.
KM: Is the answer yes in the sense I described?
BC: And to that extent he falls within the definition, yes.”

The emphasis with which (particularly as the disciplinary processes proceeded) BC spoke of those who apparently stood in his way can perhaps be illustrated by his attitude to Mr Barr (of Audit) and Mr White, who was of course, Chief Executive, both of whom were white, in his evidence to the internal appeal:-
“What did Jerry White do in this case? Set up an investigation by the Director of Finance. Unlike the Onuoha one two years later, this one never reported back.  Rob Barr looked into a fraction of the story, interviewed selectively, and then the Council quietly buried another example of blatant fraud and manipulation of Council procedures.”

Particularly if the conclusions by the Tribunal as to such matters as to the 22 October 1990 meeting and the early mention of Petadist, the beginning of the emergence of systematic recruitment fraud being in early 1995, rather than in 1990-2, and the fabrication of notes or recent inventions are flawed, then there is the less basis for any conclusion as to the lack of genuineness or reasonableness of BC’s belief.  

(ii) In any event it is necessary to consider whether the Tribunal reversed the onus of proof.  What seems to us to be the central key to the Tribunal's approach in this regard is at paragraph 103 of the first Decision:-
“In considering this question we have firstly looked to see if [BC] has provided a non-racial explanation for making [the allegations], and this has required us to consider whether the allegations are true, or whether Mr Crofton believed them to be so on reasonable grounds.”

The Tribunal certainly does not in that paragraph, nor in the following paragraph, 104, spell out what is required, namely that the onus would be on SY to disprove the “non-racial” explanations and/or to show that BC did not have a belief on reasonable grounds.  

30.	Quite apart from the apparent error of approach, the question of the fresh and/or disregarded evidence is obviously central to the issue of Recruitment Fraud, and particularly conclusions (1), (2) and (3). However the substantial evidence set out above is also to be set against the Tribunal’s finding (4) that: “systematic recruitment fraud was a problem that began to emerge only from early 1995”, and that SY then immediately started to deal with it, i.e. that there is no room for any criticism of him by BC in not having acted earlier: indeed in the same paragraph (119 of the first Decision) the Tribunal states:-
“[BC] has persisted in alleging that [SY] did little or nothing to combat recruitment fraud in particular. We reject that allegation and acquit [SY] of this charge.”

SY has submitted before us that emphasis must be laid upon the use by the Tribunal of the word “systematic”. He emphasises that individual frauds i.e. people putting forward false references, may have from time to time occurred earlier, but submits that it would be right, or at any rate arguably right, to say that “systematic recruitment fraud” was only found in 1995. It is certainly right to say that it was only when the team set up and co-ordinated by BC, the Tenancy Audit Team (TAT) finally reported in depth, at the end of 1994/beginning of 1995, that the full picture was proved beyond doubt; but it seems to us impossible to say that systematic recruitment fraud only began to emerge in 1995. It plainly began to emerge with the activities of Mr Amadi and Petadist, and the dustbins and coaching, in late 1990, the slide show consideration of Onobugu/Medpath, New Ages etc. in January 1991, the consideration of “endemic fraud” in February 1991 upon the introduction of the Police, the Williams letter in March 1991. SY himself recognised, in his own note in April 1992, the need for a “systematic” check into references across the board. I shall return to consider further and finally the question of perversity at the end of this judgment, after consideration of the other three main issues on this appeal, because:-

(i)  although the Recruitment Fraud issue appears to us to be central to this appeal, not least because of its chronological position and its centrality to the belief by BC, if he had it, that SY did not have a positive attitude to fraud or was failing in his duty, it was far from being the only issue considered by the Tribunal, even though it gave rise to twenty one out of the thirty eight specified allegations; and part of SY’s submission to us has been that even if the Tribunal erred in some respects, there was much else in the Decisions which could justify the Tribunal’s conclusions.  

(ii)  conversely there is, as will be seen in any event, an inevitable tie-up, both as to the facts and the Tribunal’s conclusions, between this issue and, particularly, the Onuoha and Police List issues, to which I now turn.  

ONUOHA
31.	Mr Onuoha was an employee of Hackney, whose job, previously in Administration, was otherwise to become redundant, and who, pursuant to the Hackney redeployment policy, was to be considered, together with another, a Mr Okala, for redeployment into the Housing Department. The redeployment question was dealt with by one of BC’s Assistant Directors of Housing, Mr J Bayliss (JB). BC came into this matter late, after the matter had previously been handled by JB, and this brought him once again into conflict with SY in and from June 1992. It was this matter which led to the setting up of the Craig enquiry, which itself led on to the disciplinary hearing and internal appeal, to which I have referred.  

32.	The Tribunal’s finding is that BC’s memo to Mr White of 9 June 1992 is ferocious (“the ferocity of [BC’s] reply”) and the allegation in that memo of “covering up fraud” is groundless and racially discriminatory (paragraphs 86, 87, 105(a) of the first Decision): and the memo of 18 August 1992, also to Mr White, in which BC is not encouraged that SY “has a positive attitude to the discovery of fraud” was similarly so (paragraph 105(b) of the first Decision).  

33. 	The following matters seemed to us to be material, and must be set against the Tribunal’s consideration:-

(i)  Minutes of a Recruitment and Redeployment meeting of 10 April 1992 in which the following is recorded under the heading:-
“Progress on posts held for redeployment”:-
“Research Officer - matched by CSG Personnel but the Manager of Housing has not yet been contacted re the essential 60%.”

This is a reference to the fact that the line manager of a post to which redeployment was suggested was entitled to specify that a redeployee should satisfy 60% of the desired criteria for such position, and he was entitled to have a role in deciding which criteria of the particular job would constitute the “essential 60%”: this is a procedure which, according to BC (and as corroborated by this contemporaneous minute) was then in operation, albeit that it was changed in September 1992. It is thus recognised by that meeting that the Housing Manager (in the event JB) had not by then yet been consulted, but was required to be so. There is no mention of this aspect at all in the Tribunal’s Decisions; indeed paragraph 63 of the first Decision suggests that a manager such as JB had no such role.  

(ii)  It would appear that either on that day (a Friday) or on the Monday 13 April (in which case JB’s response was very swift) JB was consulted, and by a memo dated 13 April 1992 he responds to Housing Personnel (Alfo) in relation to both Mr Onuoha and Mr Okala. In accordance with the procedure referred to in the minute above, he sets out his essential 60% criteria. In relation to Onuoha he concludes that he does not match those criteria in certain identified respects. He also sets out his concerns with regard to apparent false representations made by Onuoha in his job application. This memo was not responded to, but there was a meeting between JB and Alfo on 6 May 1992, as a result of which Alfo returned the papers to a Mr Donaldson at CSG Personnel in respect of both proposed deployees. In the first Decision at paragraph 67 the 13 April 1992 memo is mentioned with regard to JB’s concerns about the alleged false representations, but not with regard to matching to the 60% criteria.

(iii)  On 18 May 1992 JB meets with SY. Apart from discussing the matching, which SY said was not a matter for him, SY agreed to investigate the alleged frauds (as is corroborated by his own handwritten note of that date- “look at the application form for one of the redeployees”, and according to JB, as recorded in his contemporaneous note, he said he would come back to JB after doing so (“either he will consider or return back to Staff but … will discuss decision (and reasons) with me before implementation”). 
The first Decision records, at paragraph 79, that

“[JB] had left his meeting with [SY] under the impression that [SY] would tell him of the outcome of his investigation.”

(iv) SY did not come back to JB (paragraphs 79, 93 - 94 of the first Decision):-
(a)  In the meanwhile, Onuoha has sent a memo dated 7 May 1992 to Mr Donaldson with answers to JB’s memo of 13 April which had (inappropriately, as Mr Craig subsequently concluded) been sent on to him. This was not mentioned to JB on 18 May, and its existence not disclosed, nor a copy supplied, to JB (until it was much later sent to BC, and onward supplied by him to JB, on 30 June).  

(b)  What happened instead was that SY reported to Mr White, but without going back to JB, whether for his comments on the 7 May memo or otherwise, on 22 May. (SY later said that he had asked a Ms McGowan to let JB know that he was going ahead with the redeployment, but if so, she did not do so). By this time SY has discovered that the Research Officer post, to which it had been proposed to make the redeployment, had been frozen by BC, and SY complains to Mr White about this. What, however, he says to Mr White about Mr Onuoha was that:
“I did not intervene as the matching had already taken place.”

Although he had said to JB that he would investigate the allegation of false job applications, he did not say to Mr White that he had done so, but simply says that he “did not intervene”. Mr White sent SY’s memo to him of 22 May to BC under cover of a memo dated 27 May, asking him for a reply by 5 June. BC passed this memo on to JB for him to reply, and JB was plainly very concerned. He wrote his own memo to BC, which read, in material part, as follows:
“With regard to Mr Onuoha, I was concerned on reading his redeployment form that there were inaccuracies in his statement of his experience … I raised this with Housing Personnel [Doja], Central Personnel [McGowan] and [SY]. Central Personnel stated it was not their responsibility to investigate, it did [not?] affect the redeployment decision and, if I was concerned, I should investigate once he was in post. I did not accept this - in my view the deporting [officer] should re-check the facts. I raised the concern with SY but no action appears to have occurred. SY appears to be saying he was unwilling to intervene even if there is prima facie evidence of fraud.”

In paragraph 88 of its first Decision, the Tribunal records in relation to the passage in SY’s memo to Mr White, which I have quoted above, with regard to his not intervening:
“[BC] chooses to interpret that as [SY] saying that he did not get involved at all.”

That is however certainly how JB appears to have interpreted that sentence, when he gave his own response, at the time, to his superior BC. The tone of language adopted by the Tribunal appears to suggest a view that this is an unreasonable or not genuine stance on the part of BC.  

(v)  BC sends on to Mr White JB’s memo unaltered, together with his own covering memo of 9 June. The relevant part of that memo reads as follows:-
“[JB’s] involvement is covered in his note to me which I pass on to you unaltered … [JB’s] comments on Mr Onuoha are also contained in that note … What concerns me is that it is clear from the correspondence and [JB] is absolutely clear in his account to me, that what he raised with the Head of Personnel Services [SY] is the prima facie fraud by one of your staff. He is adamant that this is what he asked [SY] to look into. It is clear that the Personnel Division is refusing to investigate and is covering up this fraud. I would ask you as the Head of Mr Onuoha’s department to investigate this prima facie fraud by him. I would also ask you as Chief Executive to investigate the inaction by Personnel on this prima facie fraud being drawn to their attention.”

As to this:-
(a)  It can be seen that the memo is based upon the JB note which is enclosed with it (contrast the Tribunal in paragraph 86 of the first Decision (my underlining) “The notes of [JB], upon which it is said by [BC], to be based.”)

(b) It complains (ferociously or otherwise) of failure by the Personnel Department to investigate the alleged frauds raised by JB, which SY appeared to be saying he had not investigated, but which he was certainly not saying that he had investigated. The Tribunal states in paragraph 105(b) of the first Decision:-
“[BC] has made it clear to us in this case that he maintains the allegation that [SY] was covering up fraud in relation to the Onuoha matter. This has assisted us to our conclusion that he did not have reasonable grounds to believe in the allegation at the time, he made them.”
  
In the context of an apparent express failure by the Personnel Department to investigate, notwithstanding a statement by SY that he would do so, it is difficult to see what the basis is for this finding of the Tribunal, at least without very considerable further explanation.  

(vi)  Mr White copies BC’s 9 June 1992 memo on to SY.  SY is outraged, and says so in his memo in response of 12 June. He concludes that memo by alleging racial discrimination against JB:-
“One is bound to question whether, if a white officer with … [identified qualifications] …was being proposed to be redeployed into a Research Officer post, … [JB] would have questioned his ability to undertake research. It would be interesting to compare Mr Onuoha’s qualifications with those of Housing’s top management.”

The Tribunal makes no comment on this passage at paragraph 87 of the first Decision.

(vii)  The exchange of correspondence continues. BC is required to respond to SY’s grievance, and does so in his memo to Mr White of 18 August 1992. He concludes as follows:-
“I would however conclude this statement by saying that I am always open to new information or explanation of the behaviour of [SY]. [JB] would also be happy for [SY] to come back to him on a matter raised face to face with him. If either of these things had secured [sic] or did now occur, then I would reconsider my position on the matter. His actions so far, his reaction on past occasions I have raised fraudulent job applications with him, and his selection of Trade Union Representative, do not encourage me that he has a positive attitude to discovery of fraud. I expect the Local Officer hearing to be an attack on officers who raise questions of fraud, and in particular an attack upon me for having tackled fraud head on.”

The Tribunal at paragraph 87 of the first Decision appreciates the point of view of SY upon its receipt:-
“The contents of this memorandum, far from mollifying [SY], was understandably seen by [SY] to give cause for further complaint.”

However, the Tribunal does not appear, at any rate in any detail, to consider the (for these purposes more important) position of, and belief by, BC and JB. In paragraph 105(b) the Tribunal surmises, what is in any event quite plain, that the reference to the past occasions relates to the occasion of the Rent Recovery Officers recruitment, a year earlier, set out in some detail above, with reference to Dr Onobugu, the meeting of 17 May 1991 etc. The passage of the Tribunal’s Decision is as follows:-
“We are therefore left to surmise that these allegations are meant to refer to the Rent Officer recruitment and the allegation dealt with … below … We deal with that below in its own right. If and insofar as the accusations in the letter of 18 August 1992 relate to anything else, in the absence of any evidence about it by [BC], we can only hold that the accusations were not true and [BC] did not have reasonable grounds for believing them to be true.”

As can be seen, they plainly did not have to do with anything else, but rather with the Recruitment Fraud issue, and this emphasises, indeed encapsulates, the interrelationship of the Recruitment Fraud issue and the Onuoha issue (leading on to the other issues referred to below), to which I have already referred. It also illustrates, in our judgment, why it would have been more logical for the Tribunal, and it certainly seems more sensible for us, to consider first the Recruitment Fraud issue, which came chronologically first in time, as setting the context for what, in the Onuoha incident, plainly began as BC’s defence of the position of his assistant, JB. 

(viii)  SY alleged to Mr Craig during his enquiry that he did investigate the falsity or otherwise of Mr Onuoha’s job application, by enquiry and cross-examination of Mr Onuoha, himself, at a meeting of 8 June (later corrected to 3 June). He expounded on this case very substantially in his evidence at the disciplinary hearing on 8 February 1995 in answer to cross-examination by Mr Veness (KV), BC’s Trade Union Representative. I give a sample of this evidence:-
“KV:  What had been the purpose of interviewing Mr Onuoha?  
SY: … [JB] had objected because Mr Onuoha was lying in the job application. He had interviewed Mr Onuoha to see if he was lying to be unfairly put into the post, and once he had established Mr Onuoha was not lying, he had been satisfied to put him into the job……..
KV: Had Mr Onuoha been told to bring a Trade Union representative to the interview?
SY: No.
KV: Had Mr Onuoha been happy with this?
SY: Mr Onuoha had not given any indication that he had felt that the interview that SY had been holding in pursuit of [JB’s] allegations needed Trade Union representation. … Mr Onuoha had felt that he had got his facts right and that [JB] had got facts wrong.
KV: So there had only been the two of them at the interview?
SY: Yes.
KV: This was somewhat unusual when there was potential for disciplinary action and someone could be faced with something seriously disturbing?
SY: He had been investigating a matter regarding redeployment and it had nothing to do with the disciplinary procedure. 
KV: So it had been an informal meeting?
SY: No, he had been investigating an allegation … [JB] had brought the matter to his attention and if there had been any evidence, he would have told the Personnel Officer not to go ahead, because Mr Onuoha had been lying and the redeployment would have been off …
KV: If Mr Onuoha had owned up, there would have been potentially very serious disciplinary action and there had been no record or Trade Union representation, and SY had felt this was satisfactory?
SY: Entirely, and he would have written to the Service Head saying what had been said in the interview, and asking that officer to investigate disciplinary action.”

SY did not alter or amend this case, namely this very circumstantial account of his interviewing and cross-examining Mr Onuoha, and being satisfied by him that he was not lying, at the appeal hearing. As BC pointed out at the appeal, this meant that the investigation SY was saying he had carried out to decide whether the job application had in fact been false was after his memo to Mr White of 22 May, i.e. after he had confirmed the redeployment. In his evidence at the Tribunal, SY gave a different account. This was that he had not cross-examined Mr Onuoha at all. He had done an investigation, but this was limited to a meeting between 18 and 22 May with Mr Donaldson (who was not called as a witness), at which he was simply shown, and considered, the 7 May memo from Mr Onuoha, and its enclosures, from which he was of the view that there was no falsity. His meeting with Mr Onuoha on 8 (corrected to 3 by reference to his notes ) June was so that Mr Onuoha could produce to him his research papers. 

There is no mention whatever in the Tribunal Decisions of SY’s change of case, or its impact. Plainly the giving by SY of such a detailed wrong account at the disciplinary hearing, not resiled from at the appeal hearing, needs explanation, which, if available, was not addressed at all by the Tribunal. SY showed us that Mr Craig had stated, when questioned by Ms Monaghan at the tribunal hearing, that SY had told him, after the disciplinary hearing, that when he was preparing to give evidence at the disciplinary hearing he realised he had made a mistake in what he had told Mr Craig: but if that is right then it does not appear to excuse, but rather to exacerbate, the position, in that SY then appears nevertheless to have given the same, if not more detailed, evidence to the disciplinary hearing (as set out at length above) about a cross-examination meeting with Mr Onuoha which in fact never took place, and still not corrected it at the appeal hearing. There is the further point that the 3 June meeting thus not having been for the purpose of cross-examining or investigating Mr Onuoha, it seems unlikely that it was for him to deliver the research papers, insofar as they were or remained of any relevance – SY did not so suggest in his memo of 12 June to Mr White, and, in any event, the Personnel Department seemingly had them anyway, according to Mr Onuoha’s memo of 7 May – so what was its purpose? The absence of any consideration by the Tribunal of SY’s change of case as to whether and how he ever did investigate the alleged fraud further undermines the basis of the Tribunal’s conclusion that BC had no reasonable grounds for his belief that SY did not so investigate.  

(ix)  By 13 October 1992 SY knew that Mr Onuoha was threatening a possible application to the Employment Tribunal, as SY confirmed in his evidence to the disciplinary hearing on 8 February 1995. On that date he sent an internal memorandum to Mr Onuoha. By a postscript to that memo he added as follows:-
“Since writing this memo, it has been brought to my attention that an officer in Housing has been redeployed into the post, and that it is no longer available for redeployment.”

This was not the case, and the fact was that (a) SY had complained in his memo of 22 May to Mr White that the post had been frozen (b) the appointment, of a Barbara Brownlee, was to a different post.  The Tribunal in its first Decision at paragraph 105(d) concludes as follows:-
“[SY], in our view, quite properly, informed Mr Onuoha that the post for which he was being considered was no longer available … [SY’s] memorandum, even if technically inaccurate, portrays the position in a way which was not substantively misleading.”

However:-

(a)  It was wrong, as the post remained frozen.  

(b) There was plainly an impact on the Employment Tribunal application, brought on 29 October 1992 by Mr Onuoha against Hackney and also against BC personally, upon the basis of a case that “I afterwards found out that Housing Management filled the post with a white woman.”

It appears to us irrelevant that the white woman, or the fact of the woman being white, was not positively mentioned in SY’s memo, once SY had stated, incorrectly, to Mr Onuoha that the person who had been appointed in the Housing Department, who was a white woman, had been appointed to Mr Onuoha’s proposed position. The basis of BC’s complaint at the sending of this memo was that without the benefit of such information, provided by the Head of Personnel Services of the Respondent Council, Mr Onuoha would have had no case of racial discrimination, and, once it was sent, by such an apparently responsible official, it would not be possible to knock out an allegation of racial discrimination as unsustainable; whereas in fact, the true position was that the post had remained frozen, and the white woman had been appointed to a different post, as Mr Craig confirmed in his enquiry.

(c) There is no explanation given for the Tribunal’s finding that it was proper to send such an incorrect memo. In his 20 July 1993 memo to Mr Craig, in the course of his investigation, BC contended as follows:-

“The statement in the footnote to that memorandum is untrue. That statement could only have been made out of malice or gross incompetence. Given the previous correspondence, the former is the natural conclusion, but if the latter, then I would say that the Head of the Council’s Personnel Services has a particular duty of care in making statements which open up the Council to [Employment Tribunal] cases. Holding the position he does … [SY] cannot have been ignorant of the implications of his statement. Either way, it is my view that [SY] is unfit to hold the position he does.”

(d)  There is no consideration by the Tribunal of the impact on BC (who was made a personal respondent to Mr Onuoha’s consequent Employment Tribunal application) of the sending of this memo, or of the reasonableness or otherwise of BC’s opinion or belief as a result (cf paragraph 105(d) of the first Decision); BC’s statement to Mr Craig in the memo quoted above that in consequence it was his view that SY was “unfit to hold the position he does” was expressly in this context, and, again, there was no consideration of such context, or of the reason or justification for BC’s “hostility”, before the finding by the Tribunal at paragraph 105(e)(iv) that there was no ground for BC’s belief.  

34.	In our judgment, on the Onuoha issue:-

(i) the Tribunal’s decision was flawed by its approach and conclusions on the Recruitment Fraud issue, if such approach and conclusions were wrong, or at any rate was dependent or interdependent upon them.

(ii)  the Tribunal erred in its approach to the onus of proof and/or failed to address the question of the reasonableness of BC’s objection to the apparent refusal by SY to consider or investigate the allegation of a fraudulent job application. There was no consideration, and disproof, of the opinion and belief of JB, and of BC as his superior and defender, in the following contexts, in particular:-
(a)  JB was, or at any rate, believed that he was, entitled to specify his 60% criteria and to a response to his 13 April memo.

(b)  JB was told by SY that he would investigate the allegations of fraud and was told, or was under the impression, that SY would come back to him before taking any further steps.

(c)  JB (and BC) believed - and it may have been the case - that SY did not so investigate.

(d)  Apparently instead of an investigation, there was a complaint by SY to Mr White, and then allegations by SY against JB of racial discrimination.

(e)  BC was more than concerned at the fact that SY had given inaccurate information to Onuoha, thereby causing, or precipitating, the bringing of an otherwise unfounded application alleging racial discrimination against Hackney and himself.  

THE WARNOCK ISSUE

35.	In relation to this issue and the Police List issue, it is necessary to reiterate the requirement in race discrimination cases that there must be primary facts on the basis of which an inference of racial discrimination can be drawn. I refer to sub-paragraphs (3) and (5) of Neill LJ’s guidance in King set out in paragraph 28 above. This is exemplified in Chapman v Simon [1994] IRLR 124 e.g. at paragraph 47.

36.	In relation to the Warnock issue, there was required to be a finding of fact that BC’s allegation had been that SY had given Ms Warnock, partner and subsequently wife of Mr Craig and also an employee of the Council, a sabbatical as a reward for signing his naturalisation application form. Whether he made such allegation was in issue, and the issue joined most clearly appears from paragraphs 3 and 15(ii) of the second Decision, which I now abbreviate:-
“[BC’s] defence is contained in his Notice of Appearance in which he averred:-
1. That the allegations which he reported for investigation to Mr White, the Chief Executive of the Council, were capable of substantiation. These allegations were (according to [BC] ) that -
(a) [SY] was involved in approving sabbatical leave of one year for … Warnock.
(b)  In 1985, … Warnock acted as a referee in the naturalisation application of [SY]. 
(c)  … Warnock was the domestic partner of Mr Craig, Director of Finance, of the Council.
(d)   [SY] had not declared (a) or (b) above.
(e)  Mr Craig had not declared (a) to (c) above when he was appointed to arbitrate in the dispute between [SY] and [BC]………
[BC] denies saying that the sabbatical had been given to Ms Warnock “as a reward” for signing [SY’s] naturalisation form … [BC] submits that he told Mr White what Mr Patel had told him, namely that Ms Warnock and [SY] were friends and that he had authorised her sabbatical. [BC] says he then told Mr White what he knew independently, namely that Ms Warnock had signed [SY’s] naturalisation form. It is [BC’s] case that he gave Mr White both of these pieces of information for him to investigate before Mr White made a decision on [BC’s] future. (Mr White had just said that he was minded to suspend [BC]).”

It is this dispute of fact which the Tribunal had to resolve, and it was only if it was resolved in favour of SY that BC would have made an allegation against SY which could be said to be groundless, and consequently that the only inference could be one of racial discrimination.  

37.	It was found by the Tribunal that such an allegation, namely that SY had rewarded Warnock by giving her a sabbatical because she had signed his naturalisation application form, had been made, and was groundless, and could only have been on racial grounds.

38.	However, such a finding was not made on the basis of any independent evidence by Mr White as to what was said by BC on 10 October 1994, but simply by reference to his confirmation of the note of a Ms O’Connor, who accompanied him at such meeting with BC for the purpose of taking notes. The relevant notes read as follows:-
“JW: I am therefore minded to suspend you. If you wish to say anything now I will listen to it.  
BC: You cannot suspend me … I believe the investigation was suspect. I wish to refer to further information my witness gave me. One of the things Mr Patel told me was that there is a special relationship between SY and [Craig’s] wife [Warnock] and … SY granted her a sabbatical. I know that Mr Craig’s wife must have known … SY since 1980, and in 1985 she was one of his two referees in his naturalisation application. [A] highly relevant part of the investigation at the time when I alleged a friendship between [Onuoha’s] wife and SY. I think both parties have concealed things. If you proceed down the path the full investigation will find this. I suggest you stop this now and get an independent investigation. I have not been fairly treated. I feel I should have been told about the nature of the relationship. The report to you is not impartial. The relationship between Mike Craig’s wife and SY was not disclosed.  
JW: The sabbatical, when was this granted?  
BC: I do not know, we made an application [for someone else]  which was turned down.  It seems special favours were given. There is a long standing relationship between SY and Cathy Warnock. This is such a huge breach of natural justice. The Home Office will confirm this if a formal request is made. The papers relating to [Warnock’s] sabbatical is another point [my underlining] but she made the application for him. I absolutely contest [Craig] being appointed to investigate.”

39.	The context requires to be a little explained:-

(i)  BC was informed that Ms Warnock had signed SY’s naturalisation application form by the Police at a meeting he had had with them in 1991. He made, at the time, a handwritten note of this meeting (to which reference will be made further below) and such note contains the information then given to him that Ms Warnock had signed the form and so (because such was a necessary requirement before someone could sign such a form) had known him for three years before 1985, i.e. for a long time and before he had joined Hackney.  

(ii)  BC was quite separately told that SY had given Ms Warnock a sabbatical, and rather a special one, being on full pay for a year, and in any event because of its rarity, by a fellow employee, Mr Patel, as mentioned by BC to Mr White in the passage quoted above. Mr Patel confirmed in his evidence at the disciplinary hearing on 20 February 1995 that such was indeed his belief, and that he had so told BC, although it in fact emerged that he (Patel) had thought SY had been Head of Personnel Services at the time, which was not right (there is an inadequate account of this given at paragraph 21 of the second Decision).  

(iii) So far as signing of the form is concerned, it subsequently became clear that Ms Warnock had not known SY for three years prior to 1985. The issue then arose as to whether, in those circumstances, she had indeed signed the application form, because if she had, and had not known him for three years at the time, then the form would have been false. SY’s case was that he could not recollect whether she had signed, but he did not offer any contrary evidence as to who did sign, nor was he prepared to produce the form. An application by BC for production of the form (which, pending the consideration of such application, was held by SY or his solicitors to the Order of the Court) was renewed to us on this appeal and we did not make the Order at this stage; but it is clear to us that BC’s allegation that Ms Warnock signed SY’s application form was one that he believed, and had grounds for believing.

40.	I turn then to the case made, on the basis of Ms O’Connor’s note confirmed by Mr White, and the interpretation put by Mr White on that note, when he reported back to SY and subsequently.  

(i)  An allegation that SY gave a reward to Ms Warnock of a paid sabbatical year in return for signing his naturalisation application form makes no sense at all. It was not at that stage (i.e. the time of BC’s meeting with Mr White in October 1994) being alleged (nor was it known) that Ms Warnock had not in fact known SY for the requisite three years, so that if she had signed the form it would have been an improper signature, such that a reward might have been relevant. No ‘reward’ would be needed for the administrative act of signing if she had in fact known him for at least three years, which was the point that BC was then making to Mr White.

(ii)  It appears to us quite plain from the note itself that the two allegations were manifestly being made separately, i.e. of Mr Craig’s conflict of interest in making his report because of two separate assertions in relation to an association between his wife, Ms Warnock, and SY, namely first that she had known him for a long time and well enough to have signed his application form, and secondly because, as he had been informed by Mr Patel, it was he who had granted Warnock her sabbatical. 

41.	It seems to us that, on the basis of the evidence that was before the Tribunal, there was no foundation for the primary fact that BC’s allegation was that the sabbatical had been given as a reward for the naturalisation form, as found by the Tribunal, and that given that no such allegation (which would plainly have been groundless) was in fact made, there was therefore no basis for the inference of racial discrimination, which arose only because of the groundlessness of the allegation, which was not in fact made.

THE POLICE LIST ISSUE

42.	The list of names which has been called the “police list” was a list faxed from the Metropolitan Police to a Ms Kanareck, a member of the TAT, on 22 July 1993, the message on the fax header sheet reading “As requested”.  The background is described by the Tribunal in paragraph 26 of its third Decision as follows:-
“At a date late in 1993, certainly after 22 July 1993 [the date of the fax], a list of 104 names was accidentally discovered by an Internal Audit Officer, a Mr Deere, among files which were being moved by the TAT to the various Housing Neighbourhood Offices. Many of those named on the list were Council employees who had been dismissed for, amongst other reasons, fraud … It is clear to us that the list was a list of persons suspected of criminal offences, such as fraud, in relation to the Council.  Among the names on the list was that of [SY].”

43.	Again there must be primary fact upon which an inference of racial discrimination can be based. SY’s name was on the list which the Police had, and which it supplied to the Council on 22 July 1993, and the issue is whether BC put SY’s name on that list (the Immigration Authority also had a list with SY’s name on it, but the Tribunal concluded that it was not BC who supplied SY’s name to them, but that it was a Mr Jackson).

44.	The Tribunal’s decision was that there was a meeting in autumn 1991 between the Police and BC, Barr and Bundred, which has become known as the “pooh-poohing meeting”.  Although Mr Bundred had no recollection of this, Mr Barr recalled, and the Tribunal found, that when, in discussion between them and the Police about fraud, BC suggested that SY be investigated, Mr Bundred pooh-poohed this suggestion. Mr Barr recalled in evidence before the Tribunal that the particular reason why Mr Bundred pooh-poohed such suggestion was because of assistance that had recently been given by SY in relation to a Mohammed Javed, whose disciplinary case was taking place at that time, and Mr Barr consequently dated the meeting in autumn 1991.  

45.	The Tribunal concluded that notwithstanding, and after, that meeting, BC put, or caused to be put, SY’s name on that list. This was said to be clear from the note of the meeting referred to in paragraph 39(i) above, which BC had had alone with the Police, at which meeting it is plain from the note that there was the possibility of suspicion falling on SY, and on other officers, there being discussion apart from SY of Hall, JB, Doja and Alfo, and that information is being supplied by the Police to BC (among other items, the Police’s apparent knowledge about the signing by Ms Warnock of SY’s naturalisation application form). At some stage, and in different handwriting, BC had written at the top of this handwritten note “25/10/91”, but this was a date which he no longer supported (for reasons further canvassed below) and which, since this was a document he himself heavily relied on for the purpose of his defence in the Warnock case, was pleaded in his Notice of Appearance, as being “in or about the summer of 1991”. Central to the conclusion of the Tribunal is that this meeting took place subsequent to the “pooh-poohing” meeting: see paragraph 29(vi) of the third Decision:-
“The facts are that, at the meeting with Bundred and Barr, [BC] suggested that [SY] be investigated but was pooh-poohed by Bundred. Yet, at a meeting which, we infer, is a later meeting, he and the officers were clearly treating [SY] as a suspect … The inference we draw is that [BC] had pursued it between the meeting when Mr Barr and Mr Bundred attended and this meeting when [SY’s] position as a suspect was taken for granted.”

46.	However:-

(i)  There is no actual evidence of who put SY’s name on the list which was sent by the Police to the Council on 22 July 1993. The Police were called in as early as January/February 1991 (see the reference in Mr White’s notes at the slide show meeting of 18 January 1991 quoted in paragraph 25(ii) above), and already by 26 February 1991, at the meeting attended by Mr White, Mr Bundred, Mr Sugrue, BC and others, with the Police, they were talking about “endemic fraud” and “criminal conspiracy among motivated staff”. It seems highly possible that if the Police were putting together a list they would have started to have done so by, if not before, that stage.  

(ii)  There was no consideration by the Tribunal at all of the case put forward by BC that the meeting with the Police, of which he produced the handwritten note, cannot possibly have been after the “pooh-poohing” meeting, by reference to the very contents of that note. The reference which can be observed in the handwritten note to “Amadi/Petadist ongoing (coaching? school witness)”, may suggest an earlier date than autumn; and the mention of “Steve’s [Bundred’s] list for committee”, indicated to BC a date of June 1991, by reference to Mr White’s note of his meeting of 11 June 1991 with the police (referred to in paragraph 17(xiii) above) which includes a mention of “SB’s report”, and to a note of SY’s dated 18 June 1991. But, in addition, a specific submission was made to the Tribunal by BC, and repeated to us, by reference to the matter of Mohammed Javed, referred to in paragraph 44 above. Whereas the pooh-poohing meeting was, on Mr Barr’s evidence, at the time, autumn 1991, when Mr Javed’s disciplinary case was actually taking place, it is, submitted BC, clear from the contents of the handwritten note that at the time of that meeting suspicion of Mr Javed was only at a very early stage. So the pooh-poohing meeting must have taken place considerably later than that meeting. This contention was put forward in BC’s Closing Submissions in paragraphs 168 - 170. Whereas the Tribunal quotes from paragraph 167 of those Submissions on another point (paragraph 29(iii) of the third Decision), it makes, when arriving at the inference in (paragraph 26) that the handwritten note meeting was later than the “pooh-poohing” meeting, no reference to, and does not deal with, this contention of BC, made in the immediately following paragraph of his submissions, nor the evidence he relied upon in support of it.

(iii)  The Tribunal’s conclusions by way of inference in this regard are plainly based upon its conclusions (inter alia) with regard to the Recruitment Fraud issue and the Onuoha issue, with which they are consequently inextricably linked: see paragraph 29(viii) of the third Decision:-
“It is also entirely consistent with the way [BC] had conducted himself towards [SY] since late 1990, that he should cause [SY] to be on a list of suspects, and to be investigated by the Police. It is consistent with what has already been, and still is, his case, namely that [SY], as Head of Personnel Services was obstructive of the investigation of fraud, and that mainly African fraud, and consistent with [BC’s] case, that [SY] in some way used or refused to reform the recruitment procedure so as to prevent fraudulent candidates being appointed to jobs.”

47.	The Tribunal’s decision that BC put SY’s name on a police list after the “pooh-poohing” meeting and before, by or at the handwritten note meeting:-

(i)  was a finding of fact that is unsupported by the evidence. SY made the submission that a conclusion that BC put his name on that list could still be supported even if the pooh-poohing meeting were after the handwritten note meeting, but that would require findings of fact – and inferences – different from those made by the Tribunal.

(ii)  stands or falls with the Tribunal’s other conclusions above.  

CONCLUSIONS

48.	It is apparent that we have firmly and unanimously concluded that the Tribunal’s decision on these four issues cannot stand, and I shall come back to them by way of further analysis in a moment. But before I do, I should return to the submission made by SY, and by Ms Monaghan in her Skeleton Argument, that there are many other issues which are not affected, even if the Tribunal erred, or, at any rate, even if the fresh evidence caused re-consideration, in respect of these four issues; such as to justify leaving the Tribunal’s conclusions as to racial discrimination by BC unaffected. They include the following:-

(i)  The statement he made to Mr White, after the conclusion of the Craig report, and prior to the disciplinary hearing, in September 1994. This was recorded by Mr White in a note which was not produced by him until he gave evidence but which was then (unlike the tagged fifty pages) adduced in evidence (though because of its late production it had never been put to BC). The context was, it seems, his response to a suggestion made by Mr White to BC that he should apologise to SY:-
“SY should apologise to the Council - had put his crooks into jobs”.  

What had been put to BC in cross-examination, and Ms Monaghan on behalf of SY was putting what SY recalled his having been told by Mr White had been said by BC, was that BC would only “stop making these allegations when SY will have his crooks out of this organisation”. 
The cross-examination of BC, according to the Hackney solicitors’ transcript went as follows:-
“KM: Do you remember saying you would only stop making those allegations when SY will have his crooks out of his organisation? 
BC: No, I do not recall that.
KM: Well you used words to that effect. Similar words.  
BC: I complained for many years about SY’s failure to stop crooks from getting into the organisation.  
KM: Do you think that it was in that context that you would have used the term “his crooks”?
BC: No, because I did not think that he was involved. My allegation was not against him personally for being involved. Other than that he was drawing a salary without doing what he was supposed to be doing and what he needed to do … What I would accept is that I would have replied that I would not stop complaining about SY until he did something about the crooks.”

The Tribunal preferred the evidence of Mr White, and rejected BC’s explanation. This was not a specific ground or pleaded allegation of itself, but the conclusion reached by the Tribunal in regard to it inevitably influenced and informed its conclusions on other matters (see paragraph 117(c)(iv) of the first Decision).  

(ii) There were allegations about collusion between SY and his Trade Union Representative, Mr Beavis, for which BC’s only apparent justification was his querying how an important memo from SY to Mr White dated 27 May 1992 on the Onuoha matter, following up on his memorandum of 22 May, could have found its way to the Union’s hands, long before it reached BC. All three of the allegations relating to Beavis arose, as set out in paragraph 10(vi) above out of, and in the course of, the Onuoha issue, and Mr Craig’s investigation of it. The Tribunal found all three groundless.  

(iii)  There was an allegation which BC made about an acquaintance between SY and Mr Onuoha’s wife, which he said he derived from a fellow employee, Mr New, which the Tribunal also found to be groundless.  

(iv) There were side issues which were considered at some length by the Tribunal about Doja, Alfo, and others, such as a Ms Jagede, a Mr Adelana, and a Mr Brooks, and in all these cases the Tribunal was not persuaded by the evidence of BC, and found such matters of assistance in reaching their conclusions on the main issues.

The Tribunal itself said, in paragraph 104:-
“Apart from these particular reasons, we have a general reason, namely that [BC] has made so many false allegations against [SY] demonstrably without foundation.”

49.	However, we do not accept this submission.

(i)  By reference to Ms Monaghan’s own analysis of the thirty eight allegations in Appendix A to her Skeleton, thirty one relate to the four main factual issues, analysed at length above.
(ii)  In any event there is a clear interrelationship between the allegations, as has already been discussed above. It appears clear to us that if the Tribunal had come to a different conclusion on the main factual issues, (Recruitment Fraud, Onuoha, Warnock and the Police List – and of course Private Eye) it would, or at any rate, might, not have reached the conclusion it did on the minor or subsidiary or side issues; or alternatively, even if it had decided the same way on those issues, that would or might not have led it to reach the conclusion, absent the findings on the main issues, that there was racial discrimination whether in one, two or all three of the outstanding applications, particularly given 

(a)  the very statement by the Tribunal, as set out above, that it was affected by the number of false allegations, which would or might have reduced from thirty eight very substantially.

(b) The fact that in the light of its own recognition that BC had an impeccable previous anti-racist record, it was only or primarily the groundlessness of the allegations which was causing the Tribunal to draw the inference of racial discrimination that it did. The finding that BC’s conduct was found to be unsupportable in 1991 (Recruitment Fraud, including stooping to forgery of a document) and again in 1992 (Onuoha) made it the more inevitable that his conduct would be found similarly unsupportable in 1993 and onwards.

50.	The analysis in our view is therefore as follows. We conclude in relation to the first issue, the Recruitment Fraud issue, that, taking into account the Hibberd evidence and the White notes, the Tribunal’s decision was perverse: this is a sufficient description for the purposes of the authorities to which I have referred in paragraph 7 above, but the Tribunal’s conclusions in this regard were not a permissible option, were certainly wrong and, in relation to the central conclusion that there could be no ground for criticism by BC of SY because systematic recruitment fraud did not begin to emerge until 1995, there was no evidence upon which such a conclusion could be reached. For this purpose it does not appear to matter whether Hibberd’s evidence is strictly seen as fresh evidence, or as central evidence which was inexplicably disregarded. Further we conclude, as discussed in paragraph 29 above, that the Tribunal did err in relation to the onus of proof. As for the second, Onuoha, issue, this formed an important part of the first application, and for the reasons given above, is intertwined with and inseparable from, the Recruitment Fraud issue and the Tribunal’s conclusions. In any event we conclude in relation to it, as with regard to Recruitment Fraud, that the conclusions of the Tribunal that the steps taken by BC, and his criticisms of and views and beliefs about SY (right or wrong) were indicative, never mind conclusive, of racial discrimination, are again perverse and/or indicate an erroneous approach by the Tribunal to the onus of proof. The third issue relates of course only to the second application (Warnock) and the fourth issue only to the rump of the third application (Police List). We are satisfied that in relation to both there was no basis for finding the primary facts upon which the inference of racial discrimination depended.  If there was no allegation by BC of the giving of a reward to Warnock, and if BC did not cause SY’s name to be placed on the Police List after the “pooh-poohing” meeting and before the handwritten note meeting, as found by the Tribunal, then no inference can be drawn. There is no evidence upon which the Tribunal could have reached the decisions it did, and/or it was perverse. Further or in the alternative, the only basis upon which the Tribunal was able, or might otherwise have been able, in the second and third applications, to make the findings of fact, or draw the inferences, it did, would be if there were indeed permissible inferences to be drawn from conclusions hostile to BC arising out of their conclusions on the first, and main, application; and to that extent the second and third applications stand or fall with the first.  

51.	We are satisfied, having considered Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 that we should not allow the appeal and dismiss these three applications, as we have done in relation to the Private Eye case (with respect to which, as discussed in paragraph 9 above, no compensation in any event arose), especially as some parts of our conclusions have depended upon fresh evidence, and because of the potential interrelationships of the three applications; and that the better course is, while quashing the conclusions of racial discrimination by BC in the first, second and third applications, to order a re-hearing of them. Of course it is possible that the parties themselves will decide that such re-hearing is not desirable or desired, particularly in the light of the very substantial compensation already received by SY from Hackney in respect of the findings against the Council, especially in the sixth application, against which it has not appealed. But if a re-hearing be necessary, we are satisfied that the memory and ability of the principal parties remain undiminished and that the hearing of the three surviving applications, or any one or more of them, will be nowhere near of the complexity of the previous hearing. In any event it should not be heard by the same Tribunal, and all and any interlocutory applications, for disclosure or otherwise, should be open. 

OTHER ISSUES

52.	In the circumstances, as we are sending the matter back, we need to say nothing more about the various other points raised by BC in respect of comparators, whistle blowing and detriment, all of which may look very different depending upon the eventual findings of fact at a re-hearing. Similarly, although we would certainly have been minded to interfere with the quantum of the award of compensation made by the Tribunal so as to reduce it, we shall say nothing further at this stage. However we would propose to say just a little in relation to the topic of “knowingly aided”, out of courtesy to the arguments of Ms Monaghan and Mr Morton, who attended before us for that purpose alone.  

53.	The analysis appears to be as follows, put shortly:-

(i) For the purpose of establishing discrimination on grounds of race, motive is irrelevant: see James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501.
   
(ii)  If an employer discriminates on grounds of race he is liable, and he is vicariously liable for an employee’s act of discrimination in the course of his employment (s 32(1) of the Race Relations Act 1976 (“the Act”). A third party can be liable if he knowingly aids another person to discriminate on grounds of race (s 33(1) of the Act).

(iii)  An employer can escape liability if he can show that he took such steps as were reasonably practicable to prevent the employee (s 32(3) of the Act).  

(iv)  Even if the employer so escapes, and there is thus no principal tortfeasor, the employee for whom the employer would have been vicariously liable is deemed to aid the  unlawful act by the employer (s32(3)): and can thus be liable as an aider under s 33(1).

54.	However, to be liable under s 33(1) a person must knowingly aid. The Tribunal did not address this question at all, so asked no question and made no findings on the issue of “knowingly”. This was plainly an error. What is its effect, if any? In the recent House of Lords decision in Hallam v Avery [2001] UKHL 15; [2001] 1 WLR 655, a case which was in any event one of aiding by a third party, Lord Bingham at paragraph 11 of his Opinion resisted the temptation of offering guidance on the question of “the extent of the knowledge which an aider must have so as to be liable under section 33(1).”  
He continued: 
“But it does not appear, from the paucity of decided cases that the problem is one which often arises in practice and it may be that in most cases … there will be little doubt that aid was given knowingly, if it is found to be given at all. Any observations that the House might make would, in the circumstances, be unauthoritative.”

55.	Although, even without such powerful dicta, it would plainly be even more difficult for the employee in question, whose act has rendered, or would, but for the escape of the employer from liability under s 32(3), have rendered, the employer liable, to avoid the conclusion that he has knowingly aided the act of unlawful discrimination, BC came up with examples where an employee might be held not to have knowingly aided an act of discrimination, even when the actions were his, such that he submits that, had the Tribunal asked itself the question, the answer would not be automatic. There are very interesting arguments raised by Ms Monaghan as to the impact of the Equal Treatment Directive (Council Directive 76/207/EC) by reference to the analogy with sex discrimination, and by reference to Dekker v VJV - Centrum [1992] ICR 325. She submitted in any event that, on the findings of the Tribunal, it must inevitably have been the case that they would have found that BC knowingly aided, and that even though they may not have asked themselves that question, we should now ask the question, and resolve it in favour of SY. However, of course, we have not left the findings of the Tribunal as they were, and we are not going to second-guess what might hereafter arise. Where we are remitting anyway, and there are thus no findings of fact, we have succumbed to the temptation to follow the example of Lord Bingham.

JUDGMENT

56.	I have already indicated in paragraph 9 above that in respect of the fourth (Private Eye) appeal, we allow the appeal and dismiss the fourth application. In respect of the other three appeals, for the reasons I have given, we allow the appeals, quash the decisions of the Employment Tribunal that BC racially discriminated against SY, made in each of those three applications, and direct a re-hearing of the three applications by a different Tribunal.