Appeal No. EAT/0942/01/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 June 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
LORD DAVIES OF COITY CBE
MR T HAYWOOD

MR PHILTON MOORE	APPELLANT

(1) THE UNIVERSITY OF GREENWICH 
(2) RUSSELL BROCKETT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PHILTON MOORE
THE APPELLANT
IN PERSON	
For the Respondents	MR MATTHEW SHERIDAN
(of Counsel)
Instructed By:
Messrs Archon
Solicitors
Sun Court
67 Cornhill
London EC3V 3NB	

MR JUSTICE BURTON (PRESIDENT):

1	This has been the hearing of an appeal by Mr Philton Moore who is a barrister and a former undergraduate in law at the Respondent University of Greenwich, from the majority decision of the Employment Tribunal at London (South) that he was not discriminated against, or victimised, by the Respondent University, and that his claims against both the Respondent University and a Second Respondent, Mr Brockett, failed and were dismissed.

2	Mr Moore has appeared before us to represent himself, as he did before the Tribunal.  The Respondent University was represented by Counsel below and has been again represented by Counsel, although by different Counsel before us, namely Mr Mathew Sheridan.  So far as the Second Respondent is concerned no appeal, or no specific appeal, has been pursued against the dismissal of the claim against him.  The unanimous finding of the Tribunal, to which we have referred, was that the claims against him should be dismissed and that dismissal consequently remains unaffected by this appeal.

3	The nature of this appeal has, of course, been circumscribed by the Notice of Appeal which was permitted to be pursued, as a result of a preliminary hearing before Mrs Recorder Cox QC, as she then was, and a differently constituted panel of this Tribunal.  What had originally been a very lengthy Notice of Appeal was consequently slimmed down to what effectively could be characterised as five grounds or categories of grounds.  

4	Two matters which, as things have evolved before us, had not been dealt with before us must now be mentioned.

(1)	Notwithstanding the findings on the preliminary hearing, as to the grounds of appeal which Mr Moore was to be permitted to pursue, he sought to add to the Notice of Appeal grounds which were, in general terms, based upon the well known decision of Meek v City of Birmingham District Council [1987] IRLR 250, and are generically called Meek, or no or insufficient reasons, grounds.  That additional ground was not permitted by the Registrar as falling without the order of this Tribunal on the preliminary hearing, and Mr Moore has brought an appeal against that refusal by the Registrar.  It appeared to us immediately that, as is so often the case, Meek grounds are only fallback, or ancillary, to a substantive ground or grounds, if such there be; and it became apparent that the sensible course, with which Mr Moore helpfully agreed, was to deal with his appeal without reference to his Meek ground, if it was to be permitted to proceed, to see whether the appeal could be satisfactorily resolved without reference to such matters.  We have, therefore, not in the event dealt at all with that appeal and we make no order upon it.

(2)	Mr Moore felt strongly, and it is clear from his submissions still feels strongly, that he has grounds of complaint against the Tribunal, or at any rate the Chairman of the Tribunal, on grounds of unfairness and bias.  Once again, as is so often the case, it is necessary to look at the substance of the decision of the Tribunal, either before or, at any rate certainly at the same time as, any questions of bias, rather than looking at allegations of bias and unfairness separately and in limbo, because it is very often the case that a feeling that an Applicant or a Respondent has been treated unfairly by a Tribunal is best dealt with by seeing whether the eventual result was one that can be challenged on some ground of law.  If it can be, then the alleged unfairness or bias either fall by the wayside, do not need independent consideration, or are simply symptomatic of an unsatisfactory conclusion by the Tribunal in the mind of the Applicant.  If the Tribunal came to a decision which cannot be challenged in law, and no error can be shown in the Tribunal’s conclusion then, of course, a case of unfairness or bias will have to be self-standing, and it very often has very little to feed on, in the absence of the very clearest alleged conduct.

5	Once again, with the acquiescence of Mr Moore and, indeed, of Mr Sheridan of Counsel, we have considered this appeal by reference to the grounds which do not depend upon alleged bias or unfairness first, and, in the event, once again, we have not been required to consider either the detailed allegations or, indeed, the very full answers that have been given to those allegations, both by the Chairman and Members of the Tribunal and the Respondent.

6	We turn then to the substantive grounds upon which Mr Moore has relied, and, although they could have been more broadly categorised, in the end there appeared to us (and again, there was broad consent to this approach) to be only three grounds.

7	The first, and most significant, is that which can generally be called “the anonymity question”.

8	The second is the question as to whether victimisation was adequately considered by the Tribunal, which only referred, on the face of it, to section 2(1)(d) of the Race Relations Act 1976 and not to section 2(1)(a).

9	The third was whether the Tribunal erred in law in failing to reach a conclusion on a case of indirect discrimination.

10	Two matters were separately referred to, but did not, in the event, amount to specific grounds, and we shall deal with them now.

11	Mr Moore asserts that one of the two successful candidates, he having not been selected even to be put on to a short-list for a job as Law Lecturer at the University, was misdescribed by the Employment Tribunal when she, that is candidate number 5, was referred to as having had, in addition to a first degree, a second degree in law, at which she obtained a first class degree.  Mr Moore submitted that, in fact, the evidence before the Tribunal was that she had not yet obtained that first class degree in law, albeit that she had so obtained it subsequently.  

12	Mr Moore showed us documents which were before those who were making a decision as to whether to short-list him and the other candidates and as to which candidates to short-list.  One list was that which seems to have emanated from the School of Law, which was one of the three sources who were consulted with a view to short-list him.  Whether or not it did, it eventually became appendix 2 to the replies to questionnaires, which were served by the Respondent, and it referred to candidate number 5 as having a “law degree (1st class)”.  Mr Moore submitted that this document indicated the position as it was at the time when the candidates were interviewed, or at any rate when the candidates were eventually selected, and not the position at the time when the candidates were short-listed.  What he said reflected the latter position were the notes of the independent examiner, Professor Bensted, who recorded against candidate number 5 that she had a first degree in English with a 2.1 from Cambridge and, then, the following annotation “BA (Greenwich) pending”.  He submitted that this meant that, at the time of the choice of the short list, candidate 5 had not yet acquired a degree.  The third of the three documentary sources, however, which was Professor Chambers’ list, he being the third of the three channels of decision-making in relation to the short listing, records in relation to candidate 5 two ticks under the heading of “degree” which plainly, as indeed Mr Moore himself accepted, suggest that, by the time the matter was before him, candidate 5 had the two degrees and, of course, it is common ground that that second degree, being the one in law, was a first class one.  

13	Mr Sheridan’s instructions, which he relayed to us, are that the Tribunal was accurate in recording as it did, in paragraph 10(s) of the Tribunal Decision, that candidate 5 had a first class degree in law, compared to the Applicant’s lower second.  But quite apart from those instructions, which plainly were not strictly in evidence before us in any event, the basis of Mr Moore’s challenge, coming as he does from the outside, in the sense that he was not the recipient of any of this information at the time and only has gained it as a result of disclosure in these proceedings, is that he has to assert that there was no evidence upon which the Tribunal could reach the unanimous decision it did, in paragraph 10(s), in relation to candidate 5, or that it was perverse in so finding.  We are plainly unable so to conclude.  The documentary evidence, to which we have referred, is plainly consistent with, at any rate, Professor Chambers, if not the School, knowing of the existence of the degree and the note of Professor Bensted may be explicable by the fact that the degree was known before the short list was in fact put together, albeit not recorded by him in his own note.  But, put at its lowest, there was plainly evidence upon which the Tribunal reached the decision it did.

14	The question as to comparison between the Applicant’s academic qualifications and those of one of the two eventual successful candidates is, of course, in any event, only a small part of the question which fell to be decided before the Tribunal, and we put aside this matter entirely from our consideration, save unless and until it became relevant that there is this ongoing dispute, in the sense that Mr Moore remains unsatisfied, if it became relevant on any question of remission to the Tribunal, if such were to arise.  

15	The second matter to mention to dispose of at this stage relates to the Second Respondent, Mr Brockett.  The Tribunal recorded at paragraph 5 of its Decision as follows:

“The Tribunal read the second Respondent’s witness statement.  He did not appear in person before the Tribunal and thus his evidence was not subjected to cross-examination.”

16	That is, in fact, incorrect.  The Tribunal had sat on 27 and 28 June 2000, sat again on 16 to 18 January 2001, and had its Chambers discussion on 1 March 2001, the Decision then being handed down to the parties on 12 June 2001, no doubt after the interposition of the minority’s dissenting views, in paragraph 18 of the Decision;  and at some stage between the giving of the evidence and the unanimous statement in the eventual judgment that Mr Brockett had not given evidence, it clearly escaped the minds of all three of the Tribunal members that he had done so.

17	Mr Moore does not seek to challenge the finding, in paragraph 17 of the Decision, in which the separate question relating to the Second Respondent is addressed, that Mr Brockett was not involved in the selection process for short-listing, and that he did not discriminate and the claim against him was unfounded and fell to be dismissed.  Mr Moore accepts that he had no relevance in those circumstances to the questions of direct discrimination, or victimisation.  

18	Mr Brockett gave evidence only in relation, it appears, to the Equal Opportunity policies of the Respondent.  If the question of indirect discrimination were relevant, then Mr Moore asserts that there would have been some relevance in Mr Brockett’s evidence.  But that apart, he accepts that there is no relevance to any questions of direct discrimination, or victimisation, with regard to the Respondent University and, as we have indicated, he makes no separate challenge to the dismissal of the case against Mr Brockett personally.  In those circumstances there is no separate matter which arises in respect of Mr Brockett.

19	It is clearly unfortunate that the error was made by all three of the Tribunal members in forgetting that he had given evidence, but it appears to us that it is of no relevance to the matters that we are deciding.  It might, or might not, have had some relevance, if the issue of bias and unfairness were being addressed as a separate question, but even then, given the conceded irrelevance of the evidence to the questions of victimisation and direct discrimination, that seems itself unlikely.  But we turn to the three matters which have formed the major basis of this appeal before us.

Anonymity

20	The unanimous findings by the Tribunal are set out in paragraph 10 of the Decision.  Mr Moore has sought to question the unanimity of the Tribunal, in relation to these findings set out in paragraph 10, in the light of the dissent by the minority, but he has no substance for that suggestion in our judgment.  There is no doubt at all that the structure of this Decision is that there are set out in paragraph 10 the factual findings of the entire Tribunal, as paragraph 10 expressly says.  There were then certain findings of fact at paragraph 11, which were only made by the majority.  On the basis of the unanimous findings and, in contradistinction to the views expressed by the majority decision, the minority finds, as it is put in paragraph 18 of the Decision, the following additional “facts”, which plainly indicate that those facts are the minority member’s facts, in addition to those with which she had concurred in paragraph 10.

21	We should deal very briefly with the factual background, which has become probably apparent from the earlier part of this decision already.  The Applicant, who had been previously an undergraduate at the Respondent University, applied in response to vacancies for a Lecturer’s post in 1999, for a position as a Law Lecturer.  The University received 26 applications for the two posts.  The complaint that the Applicant makes is that he was not short-listed whereas, of course, others were.  We think 10 made the short-list out of the 26, not including the Appellant.

22	The Appellant had made previous complaints and, indeed, had brought previous proceedings, in respect of discrimination against him, in the Central London County Court.  It appears that there had been two sets of such proceedings, one to which the University and Professor Chambers were parties, which was settled upon payment of a sum of £1,900 to him, and one to which the University and two Lecturers and the academic Registrar were a party.  

23	The basis of the Applicant’s case for victimisation was that, because of what had passed previously between himself and the University, the discriminatory failure or refusal, as he submits it to be, to put him on the short-list was an act of victimisation.  Be that as it may, it was Professor Chambers to whom fell the responsibility, as Head of the Law Faculty, to carry out the short-listing exercise.  Professor Chambers was, of course, aware of the Appellant.  He did not, as he might otherwise have done, carried out the short-listing exercise himself; and equally, as, the Tribunal found, he might otherwise have done, he did not rule out the Appellant’s application because it was received after the closing date for receipt of applications set out in the advertisement, but he included it.  But instead of carrying out the University’s set procedure for short-listing, which vested the short listing decision in him alone, in the circumstances he introduced the three-channel method, to which we have already made reference; through himself, through the appointment of Professor Bensted who, it was common ground and, indeed, was found by the Tribunal, had no knowledge of the Appellant, or of his previous dispute with the University, and was entirely independent, and through the School, presumably that means the Law Faculty at the University.  The Tribunal found, in paragraph 10, unanimously, as follows, in relation to the short-listing exercise:  at subparagraph 10(p):

“All three short listing bodies produced a list of candidates whom they recommended for interview.  The three lists were almost identical in their selection of interview candidates and none of them included the Applicant’s name.  All the candidates whose names appeared on any one of the three short lists were interviewed.”

They further found, at subparagraph 10(s), to which we have already referred:

“The candidates who were short listed had, without exception, superior qualifications or experience to the Applicant.  In particular candidate 5, who was a successful applicant and with whom the Applicant in this case chose to compare himself, had a first class degree in law (compared to the Applicant’s lower second) and a second first degree in English (class 2:1) from Cambridge.”

24	Those were the unanimous findings of the Tribunal.  The minority, while agreeing with those findings of fact, as we have indicated, concluded that the procedure, because it differed from the ordinary selection system, was unfair and in her view discriminatory, and she sets out that conclusion at some length, in paragraph 18 of the Decision, which was incorporated into the Tribunal’s Decision as her minority view.  That proposition is not one supported by Mr Moore, at any rate on this appeal, but it appears to have been primary, if not determinative, in her own conclusion about the discrimination against the Appellant.  

25	There is, however, an important dispute, apart from that, between the majority and the minority which revolves around what we have called “the question of anonymity”.  In paragraph 11 of the Decision the majority set out, among others, the following findings:

“(a) The Application forms which were sent to School and Professor Bensted had the candidates names blanked out.  Details of candidates’ ethnicity was on a separate form retained by personnel and was not seen by those persons making the short listing decisions.  The short listing thus took place without there being any overt evidence of any candidate’s name, race or gender.  The Applicant did not challenge the Respondent’s evidence to this effect.
(b) Some but not all of the teaching staff who comprised School would have known the Applicant because of his previous association with the university and a few might have known of his dispute with a member of the teaching staff.  Since the application forms were anonymous the Tribunal feels that it is unlikely that discrimination could knowingly have taken place during the School selection meeting.”

In relation to victimisation, the Tribunal’s conclusion was as follows, in paragraph 13:

“The Applicant claimed that he had been victimised during the selection procedure because of his previous complaint against a member of the university’s teaching staff.  The majority of the Tribunal accepts the first Respondent’s unchallenged evidence that the short listing process was carried out anonymously with the candidates’ names having been removed from the application forms.  On this basis, no victimisation can have taken place and the Applicant’s claim is unfounded.”

26	So far as the Race Discrimination claim, the majority set out its decision in paragraph 16, as follows:

“16	In this case the Tribunal has examined with great care the evidence presented to it by both parties.  The majority of the Tribunal reaches the conclusion that the Applicant was not discriminated against on the grounds of his race because:
(a) the Applicant’s application was included in those for consideration for short listing despite the fact that it had been received out of time and could have been rejected on the grounds of lateness;
(b) the first Respondent carried out a short listing procedure which exceeded the minimum standards laid down by the first Respondent’s personnel department and included in that process selection of interview candidates by an external examiner who had no knowledge of any of the candidates;
(c) the candidates’ applications were considered anonymously and without any knowledge of the ethnicity of any of the candidates;
(d) the candidates who proceeded to interview and those who were ultimately successful in their applications were patently better qualified than the Applicant.”

27	The minority included, relevant to this aspect, the following in paragraph 18 of the Decision which recited her minority view:

“18(c) The minority member heard no evidence that the names were blanked out on the application forms prior to them having been passed to the different groups.  Evidence was given that the names were blanked out at the point when the results and the mark sheets were given to the Applicant and that numbers were used instead of names.  It was clear from documentary evidence ... that on the left of the page the names were obscured; had the Respondent removed the names from the application forms there would have been no need to obscure the name columns as only numbers would be present and the need would only be to write the Applicant’s name in over his number, in which case the lines in the name column would still be visible.”

28	Mr Sheridan, on behalf of the Respondent, has accepted that in this regard the minority member was right, and the majority was wrong.  It is correct to say that at the time when the details were submitted to the School the names had not been deleted.  Thus Professor Chambers himself would, of course, have known the names, including the name of the Applicant.  Professor Bensted would have known the names, but none of them would have meant anything to him.  The School would have known the names, because they were not deleted until later.  

29	Mr Moore submits that this error by the Tribunal is fundamental and flaws the conclusions that the Tribunal reached.  Mr Sheridan accepts that the conclusion reached by the Tribunal, in paragraph 13, on its face, and in paragraph 16(c), must be regarded as flawed, but submits that, nevertheless, the decision to which the Tribunal came was correct, and even without that error of law, either this Tribunal should not disturb the conclusion, or this Tribunal should not feel that it must remit the case back for re-hearing, because it can be satisfied that the same result would have been reached, even if the Tribunal, or its majority, had not, by the time it made the decision, been labouring under the obvious misapprehension which it was under.

30	Mr Sheridan accepts that the leading case in this area still remains, after all these years, Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329, a decision of the Court of Appeal, per Sir John Donaldson MR and Slade and Parker LJJ.  The central words in that decision of Sir John Donaldson, with which their other Lordships agreed, reads at paragraph 18 of the report as follows:

“Once you detect that there has been a misdirection and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong but whether it is plainly and unarguably right notwithstanding that misdirection.  It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand.  If the conclusion was wrong or might have been wrong then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact.”

31	Mr Sheridan understandably does not seek to make any distinction between something that is strictly a misdirection of law, and, as here, a mistake as to fact which is central, or arguably central, to the conclusion of the Tribunal.

32	It is plain that, on the face of it, the Tribunal’s mistake was central to its conclusion.  It is plain also that there is the binding authority of Dobie v Burns, notwithstanding the inevitable reluctance of an appellate tribunal to remit a matter, unless it has to, which is going to result in further expenditure of time and cost.

33	Mr Sheridan submits that in the light of the unanimous findings of the Tribunal, particularly those as to the circumstances of the setting up of the short listing, including the fact that there was this extra careful system appointed by Professor Chambers, and the fact that he might have rejected the Applicant’s form, in any event had he chosen to do so, but also in the light of paragraphs 10(p) and 10(s) to which we have referred, that it is clear that the Tribunal would have come to the same conclusion, in any event, even had it not been mistaken;  particularly given the findings of fact in relation to candidate 5 but, in any event in that in the light of the general findings of fact unanimously set out, particularly in paragraph 10(s), there was a clear reason for the rejection by the Appellant from the list and the choice of those over him who were so chosen.  In addition there was, as is made clear in paragraph 16, the appointment of the independent adviser, who could not possibly have been affected by any knowledge of the Appellant, or his existence, or indeed his ethnicity.  He further submits that, although the mistake, on its face, relates to the anonymisation of the names at all stages of the short listing procedure, nevertheless it is quite apparent that the Tribunal must have appreciated, and did appreciate, that the only relevant non-anonymisation, as such it was, related to the School, because it cannot sensibly have been thought that Professor Chambers did not know the names, and it was common ground that it did not matter if Professor Bensted did.

34	The test in Dobie v Burns is a very high one.  If we had been permitted to substitute our own judgment, or to form a view as to the likeliest result in relation to this application, we would have been extremely persuaded by the conclusions of the Tribunal, in paragraphs 16(a), (b) and (d), that there were substantial grounds for what occurred, which were independent of any issue of discrimination, such that the Tribunal’s decision could have been perfectly well justified on those bases alone.  

35	However, that is not the test.  The test is, as articulated by Sir John Donaldson, that it is (and we paraphrase) only if the conclusion of the Tribunal is plainly and unarguably right, notwithstanding the error that the decision can stand.  If the conclusion might have been wrong, then we must remit.  Although it is never right to construe a Tribunal Decision as if it were a statute, it appears to us, on its face, that knowing, as the majority did know, the dispute about the issue of anonymisation between itself and the minority, it nevertheless rested its conclusion, at least in material part, on the anonymisation.  So far as discrimination is concerned, one of the four grounds for its conclusion that there was no discrimination was that there was anonymous consideration of the candidates’ application.  

36	So far as the victimisation is concerned, although we entirely take the force of Mr Sheridan’s argument that in concluding that there was no victimisation, a substantial part, if not the whole of the reasoning, must have been that there was no discrimination for the reasons set out in paragraph 16, nevertheless, on its face, the conclusion in relation to victimisation, in paragraph 13, rests solely on the existence of the anonymisation process.  

37	We cannot be satisfied that the Tribunal would certainly have reached the same conclusion had the majority not been mistaken in the way it was, and in those circumstances we would propose, because we are compelled to do so, to remit the matter for a fresh consideration.

Section 2(1)(a)
38	We turn to the second point which, in the circumstances, can be dealt with briefly.  In paragraph 12 of the Decision, allowing for an obvious misprint referring to section 21 of the 1976 Act, rather than section 2(1), there is, as we have indicated, only reference to section 2(1)(d) and not to section 2(1)(a).  Mr Sheridan submits that, notwithstanding that, it is apparent that the Tribunal must have taken into account the fact that there had not only been an earlier complaint by the Appellant against the Respondent University, but that he had actually brought proceedings, such as to fall rather within the confine of section 2(1)(a) than of section 2(1)(d) of the 1976 Act.

39	Mr Moore points out that there is no specific reference by the Tribunal to the fact that Professor Chambers not only would have known of the existence of the Applicant and his previous involvement in making complaints against the University, but had himself been a defendant in the very proceedings;  and it may be that the fact that the Tribunal’s attention was not, for whatever reason, specifically on subsection (a) meant that they had not fully appreciated the extent of Professor Chambers’ previous involvement.

40	Mr Sheridan submits, nevertheless, as part of his main argument, to which we have referred, that in the light of the Tribunal’s justifiable conclusion, in his submission, that the short listing was properly carried out, irrespective of knowledge of the Appellant’s identity, the failure to refer to section 2(1)(a) would not be material, given that the real issue was whether there was victimisation, in particular by Professor Chambers, or a fair selection of a short list, irrespective of the Appellant’s identity and ethnicity.  

41	Given the conclusion that we have reached in relation to anonymity, whereby as a result of the error by the Tribunal the matter must be reconsidered, we do not need to reach a separate conclusion in this regard, and we must only emphasise, and do, that the Tribunal which will hear the case on victimisation, as a result of this remission, must of course bear in mind not only section 2(1)(d) but also section 2(1)(a) of the Act.  

42	We do not need to consider whether the failure to refer to section 2(1)(a) is an independent basis for challenging a decision which we have already concluded cannot stand.

Indirect Discrimination
43	The third matter was an entirely separate question.  The Appellant alleges that the Tribunal did not deal, and should have dealt, with a case of indirect discrimination.  It is plain, and not in dispute, that neither the majority, nor the minority, addressed indirect discrimination in its Decision. and the majority decision to dismiss the claims, in terms, was plainly addressing and dismissing a claim for victimisation and direct discrimination.

44	So far as race discrimination is concerned, section 1 of the Race Relations Act 1976 sub-divides race discrimination, as is well known, into direct and indirect discrimination.  

By section 1(1)(a):

“(1) A person discriminates ... if - 
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons.” [direct discrimination]

By section 1(1)(b), he discriminates where:

“(b)	he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i)	which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii)	which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii)	which is to the detriment of that other because he cannot comply with it.”

Indirect discrimination is, of course, not a straightforward matter.  Direct discrimination it is well understood may be difficult to prove, simply because it is difficult to show that there has been such direct discrimination, but if there is conduct from which it is and can be inferred then such case can be proved by reference to the conduct of the Respondent.  Indirect discrimination requires identification by way of evidence of matters falling within subsection 1(b)(i).  It must identify the detriment and establish it under section 1(1)(b)(iii) and it must not be justifiable within section 1(1)(b)(ii).  Very often there is economic or other evidence as to the existence of such requirements and their effect.

45	Mr Moore submits here that a case which he says he made was not dealt with, namely that there was a requirement falling within section 1(1)(b) which, he submits, was imposed by the Tribunal, namely some kind of teaching experience, and with which it was more difficult for people of ethnic backgrounds such as his to comply with.

46	There is, of course, considerable authority in this area as to what amounts to such a requirement and in this case he would have had, in any event, difficulty in establishing that what was described in the job specification as desirable, namely previous teaching experience, was in fact, on the facts of the case, elevated into an essential criterion:  and Mr Sheridan submits that the imposition, if such there was, of such a criterion, whether desirable or essential for the purpose of his argument would not matter, he would have sought, or the Respondent University would have sought, and successfully sought, he submits, in relation to selection of Law Lecturers to have justified any such requirement.

47	But the fundamental objection which Mr Sheridan takes is more simple.  He says that there was no error by the Tribunal in failing to deal with this point, since that is what must be established by Mr Moore, because in fact the case was not put before the Tribunal by Mr Moore.  The Originating Application which he brought refers to section 1 of the Act, but without differentiating between section 1(1)(a) and section 1(1)(b), and nowhere refers to indirect or direct discrimination.  Had he brought, on its face, a case for indirect discrimination at the outset of the Tribunal it may be that there would even then have been argument as to whether he was permitted to do so, and as to whether indirect discrimination fell within the ambit of the Originating Application, or would have required amendment, it by then being too late to amend within time;  and, of course, no doubt the Respondent would have submitted that time would have been needed to put together evidence which is the kind of evidence that would normally be adduced to deal with that kind of a case.  But there was no such amendment sought, nor, indeed, on the face of the Tribunal’s Decision and its notes, with which, of course, Mr Moore in any event, takes exception for other reasons as set out in his allegations of bias, any specific submission made with regard to indirect discrimination at all.

48	What Mr Moore has frankly said to us is that he did not articulate the case and that the Tribunal should have been alive to it.  The fact remains as follows.  His Witness Statement makes no mention of a case of indirect discrimination.  What is set out in the Witness Statement, to which he seeks to make reference by way of some assistance to his case, is that he asserted, as he had done in the Originating Application, that the Respondents were in breach of the Commission for Racial Equality’s Code of Practice in Employment, and those breaches are then particularised in paragraph 23 of his Witness Statement, in the way that they were in paragraph 17 of his Originating Application.  That does not amount, in our judgment, nor plainly appeared to the Tribunal to amount, to a case of indirect discrimination.  
49	Mr Moore also referred to certain questions he had asked in evidence, as noted by the Chairman, and to certain answers to the replies to the Questionnaire which was served, in particular replies 8 and 9 in the answers delivered by the Respondent University on 31 March 2000.  All those matters are entirely consistent with an exploration by him of a case of direct discrimination, by reference to questions relating to the proportion of ethnic lecturers who are and have been employed by the Respondent University.  
50	But the real nub of the matter appears to us to be that in fact there were closing submissions prepared, and ably prepared, by Mr Moore setting out his case, which we have had the opportunity of reading, and, although he had at the outset of this appeal told us that there was what he called a chunk of those closing submissions dedicated towards indirect discrimination, it is quite apparent that there is neither a chunk, nor indeed any part of the submissions so dedicated.  Once again there are references in the closing submissions to numbers of lecturers employed, but nowhere in those final submissions is any case articulated or implied which would have caused the Tribunal to understand that it had before it a case of indirect discrimination, or to make any decision in relation to it;  and we are completely unable to say that there was any error of law on the part of the Tribunal by failing to make any such finding.  In those circumstances, we are satisfied that no case of indirect discrimination was put before the Tribunal in time or at all.  

51	Our conclusion therefore is that the cases of victimisation and direct racial discrimination should be remitted.  We are clear that not least because of the fact that this was a majority decision by the Tribunal now some time ago, but also because of the allegations, none of which we have sought to consider, or test, for the reasons we have given but, in any event, because of the nature of the exercise which we will be asking such a Tribunal to carry out, namely to put out of its mind the error which it had made, we are satisfied that this should be remitted to a different Tribunal for a fresh hearing of the allegations of direct discrimination and victimisation.  We accordingly so order that those claims should be remitted for consideration by a differently constituted Tribunal, and to that extent this appeal is allowed.