Appeal No. UKEAT/0205/10/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 2010

Before
HIS HONOUR JUDGE HAND QC
MR P GAMMON MBE
DR K MOHANTY JP

ISS MEDICLEAN LTD	APPELLANT

MR H ELKIYARI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR K SONAIKE
(of Counsel)
Instructed by:
Abbey Legal Services
2nd Floor, Corinthian House
17 Lansdowne Road
Croydon
Surrey
CR0 2BX	
For the Respondent	MISS N MOTRAGI
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Congress House
Great Russell Street
London
WC1B 3LW	

SUMMARY
RACE DISCRIMINATION:

Inferring Discrimination and the Burden of Proof
Although the stated belief of the employer may amount to the reason for dismissal in terms of section 98 of the Employment Rights Act, a combination of the different statutory wording in terms of direct race discrimination (here section 1 of the Race Relations Act) and the application of the reverse burden of proof may lead in some cases, the instant case being possibly an example, to a finding that the reason for dismissal, e.g. misconduct was also less favourable treatment for the purposes of anti-discrimination legislation; Chamberlain v Emokpae [2005] ICR 931 distinguished.

Appellate jurisdiction/reasons/Burns-Barke
But the ET appeared to have relied only on the difference of nationality and the difference of treatment to reverse the burden of proof and did not deal at all with a subsequent case of dismissal of an Italian national in similar circumstances.  Accordingly, it being too late for the Burns Barke procedure, case remitted for further consideration as to whether the factual material, apart from the difference of nationality and the fact that others had not been dismissed, led to a reversal of the burden of proof and where the later dismissal fitted into that analysis. 

HIS HONOUR JUDGE HAND QC
	 
1.	This is an appeal from the judgment of an Employment Tribunal comprising EJ Zuke, Ms Leverton and Ms Knight sitting at London South on 1 and 2 December 2009.  The written Reasons were sent to the parties on 5 February 2010.  The Tribunal found that the Respondent to this appeal, Mr Elkiyari, had been unfairly dismissed, had been racially discriminated against and, accordingly, was entitled to receive compensation, which the parties agreed in the sum of £25,000, subject to this appeal.  

2.	This appeal is against only the finding of race discrimination.  So the practical implication is that if the appeal were to be allowed and we are able to substitute a finding ourselves that there was no race discrimination, that would have an impact on the amount of compensation.

3.	The Respondent is of Moroccan origin.  He had worked for the Appellant at Kingston Hospital.  In total he had worked over 20 years there.  There has been a rule in force.  It is set out at paragraph 6 of the Employment Tribunal's judgment:  

"(a) Employees must follow all reasonable instructions issued by or on supervision and management. 
(h) Food and drink may only be consumed in designated areas in the workplace. 
(n) Employees must not wilfully damage, destroy, remove, steal or attempt to steal the property of the company, clients, employees or others."  

4.	On 24 July the Respondent and others were reminded at a meeting about the rule.  The minute of the meeting was set out by the Employment Tribunal at paragraph 7 of the judgment: 

"Eating on duty. All food consumed on the premises must be consumed in designated eating areas only ‑ staff restaurant only and no other area. Food must not be taken from the kitchen under any circumstances and all food and drink must be paid for through the tills. Several reminders have been made in the past, and no further warnings will be given. Failure to comply will result in disciplinary action being taken for theft, and may result in the termination of your contract." 

5.	In fact even after that meeting and the emphasis that appears to have been placed in it on the prohibition on eating on duty, there were two incidents, one in December 2008, where an employee of Portuguese origin called Alberto was found eating an apple and the second also in December 2008 (but probably at Christmas) when an employee called Quintino, who was also of Portuguese origin, was found eating what appears to have been a Christmas dinner of turkey, potatoes and vegetables.  No disciplinary action was taken against them.

6.	There had been a third incident involving an employee called Kuhan, who was of Sri Lankan origin.  He had been found eating a bowl of porridge and had been suspended although subsequently he had not been disciplined.  It is not clear whether the suspension was a disciplinary sanction or part of an investigative process.  Nor is it clear whether that incident had occurred before or after the catering meeting took place in the summer of 2008.

7.	On 2 February 2009 there was, it may be remembered, a very heavy snowfall.  Notwithstanding that adverse weather, the Respondent got to work.  Whilst at work it was alleged by two men, who subsequently made statements, that he was seen to eat pasta from a serving tray with his hand.  As a result an investigation started.  When asked, the Respondent gave an account that he had not eaten pasta because it contained bacon (and presumably as a Muslim he would not eat pork) but he accepted that he had eaten a piece of garlic bread.  Whatever the origin of the original complaint or its motive, the case proceeded on the basis of his admission as to eating the garlic bread.  

8.	Disciplinary proceedings were started but the letter calling the Respondent to the disciplinary hearing went astray, and the hearing had to be rearranged.  It took place on 10 February 2009.  During the course of the hearing the Respondent was not shown the statements made by the two employees but he admitted, once again, that he had eaten garlic bread.  He denied having eaten any pasta.  He was summarily dismissed.  The managers notes refers to “poor hygiene” and is dealt with at paragraph 18 of  the Employment Tribunal judgment in these terms:  

"Your poor hygiene was in the hand to mouth action of eating the garlic bread. Due to the facts I have explained, and the fact that you have admitted being told about this before, I am sorry to say that on this occasion I have not alternative but to summarily dismiss you."

9.	Ironically, the Respondent received two letters the following day.  The first congratulated him for having attended at work despite the adverse weather conditions, the other informed him that he had been summarily dismissed.  

10.	He appealed.  In his appeal he emphasised that the food was to be thrown away, that he had left home at 5 o'clock in the morning to get to work and that at the time of the incident he had not eaten so that his dismissal was disproportionate.  In March he amended his grounds of appeal to allege race discrimination because others who had eaten food in similar circumstances had not been dismissed.

11.	On appeal, the manager who had dealt with the disciplinary hearing who, as is often the case, was writing to the manager in charge of the appeal, explaining what had happened in the disciplinary hearing, appeared to emphasise theft rather than hygiene.  This is clear from paragraph 22 of the Employment Tribunal's judgment, where a memorandum that was sent forward to the appeal was quoted: 

"It was clear that Hamid [the Claimant] had admitted to theft and as far as I could see was cut and dry, admitting to theft = dismissal. 
The decision to dismiss Hamid was based entirely on the investigative meeting minutes, his admission to theft had taken into account the company rules and regulations. 
Hamid was well aware that taking food from the kitchen was not permitted as the previous summer Kuhan had been suspended for the exact same thing, taking food from the kitchen." 

12.	The note, as can be seen, mentions someone called Kuhan as having been suspended for “the exact same thing, taking food from the kitchen” in the previous summer.

13.	This was a matter that was ventilated on appeal.  Nevertheless, the appeal was dismissed because food which had not been paid for had been eaten in an inappropriate area.  That is a summary of the letter dismissing the appeal which is dated 14 April and is referred to at paragraph 24 of the Employment Tribunal's judgment.

14.	The Employment Tribunal reached its conclusion at paragraphs 27 to 52. The conclusions are divided as to unfair dismissal, which runs up to paragraph 48 and race discrimination, which goes on from paragraph 49 to paragraph 52.  So it is obvious that a good deal more of the discussion was devoted to unfair dismissal than was devoted to race discrimination.

15.	The Employment Tribunal found the dismissal to be unfair because the statutory procedures had not been followed.  The Respondent had not received the letter summoning him to the disciplinary hearing which the Employment Tribunal decided was a step one letter in terms of the statutory procedures.  The Employment Tribunal concluded that holding the step two meeting, i.e. the disciplinary hearing, before the Respondent had seen the letter was a breach of the procedure.   

16.	The Employment Tribunal went on to consider, however, whether the dismissal was substantively unfair.  Because the matter is not under appeal it might not be thought appropriate for this Tribunal to consider those aspects of the judgment.  But as the submissions have developed and, particularly having regard to Ms Motragi’s submissions on behalf of the Respondent, its quite clear that we need to consider the way that the Employment Tribunal decided the substantive unfair dismissal question.

17.	It is also clear from Mr Sonaike's submissions on behalf of the Appellant that there is to be found, in this part of the judgment, some findings, which he submits are extremely relevant to the issue of race discrimination.  So both counsel submit that we should look at material.  Not surprisingly both draw different and opposite conclusions from it.

18.	The Employment Tribunal asked itself what was the reason for dismissal. The two managers involved believed that it was the eating of garlic bread and that was the reason for dismissal.  That is first set out at paragraph 37, in terms of the beliefs held by the manager, Mr Newbert, who conducted the disciplinary hearing and the manager, Mr Jesus, who conducted the appeal.  Of course the Employment Tribunal had to deal with that in terms of belief because this was a misconduct dismissal and it had to consider, in terms classically set out in The Post Office v Foley; Midland Bank v Madden [2000] ICR 1283, what was the belief that was held, was it genuinely held, was it reasonably held, had the disciplinary proceedings been fairly conducted and whether the sanction applied had been within the band of reasonable responses.  It should be noted that this is a somewhat different exercise to that undertaken in respect of race discrimination.  All this has been explained by Mummery LJ in his judgment in the case of North London Ambulance Service v Small [2009] EWCA Civ 220.

19.	What Mummery LJ made clear there was that, in some cases, Tribunals must separate out their findings relative to unfair dismissal from the findings that relate to such matters as race and sex discrimination or breach of contract and, indeed, the evidence that leads to those findings.  This Tribunal did not approach the matter in this way; sometimes it may be difficult in practice to apply the guidance given by the Court of Appeal in Small and here the Tribunal may not have had the case of Small drawn to its attention, although it is very likely that it was reported before the Tribunal's decision was reached.

20.	The Tribunal did however address themselves at paragraph 39, to such well‑known cases as British Home Stores v Burchell [1980 ICR 303 and Sainsbury's Plc v Hitt [2003] ICR 111.  As we have indicated earlier, they could have mentioned Post Office v Foley and other similar cases.  They found, firstly, that Mr Newbert and Mr Jesus genuinely believed that the Respondent had eaten a piece of garlic bread (see paragraph 40 of the judgment) and that there were reasonable grounds for that belief because he had admitted it and no further investigation was necessary (see also paragraph 40 of the judgment).

21.	The Tribunal went on to consider section 98(4) of the Employment Rights Act and directed themselves as to what equity might mean in section 98(4)(1)(b) by reference to the judgment or part of the judgment of Brandon LJ in Post Office v Fennell [1981] IRLR 221, which they quote at paragraph 42 of the judgment.  They then make a series of further observations at paragraph 43.  They refer to their previous findings of fact and they say this: 

"Prior to the Claimant's dismissal, three other employees were found eating food without authority, and were not dismissed. The Respondent did not produce any evidence about their cases, or explain why none of those employees had been dismissed. Mr Newbert, in his memo quoted above confirmed that Kuhan had done 'the exact same thing, taking food from the kitchen'.   However, Kuhan was suspended and then brought back to work. No disciplinary action was taken against him. He was not dismissed." 

22.	At paragraph 44 of the judgment, they deal with the disparity of treatment, which had been raised on appeal.  They say this in the third sentence at paragraph 44: 

"The Respondent has been on notice from the outset of this litigation that it was part of the Claimant's case that he was treated more harshly than employees who had committed a similar disciplinary offence.  The Respondent has had ample time to investigate those allegations of comparative treatment.  It is a striking fact that the Respondent produced no evidence to the Tribunal to contradict the Claimant's evidence about these employees." 

23.	They go on, at paragraph 45, to conclude that he had not been treated equitably.  They reiterated in paragraph 45 that he had been dismissed for eating food without permission.  They remark that other employees had not been dismissed when they had eaten food without permission.  They reached the conclusion that no reasonable employer would have dismissed the Respondent for eating a piece of garlic bread when employees who had committed similar disciplinary offences had not been dismissed.

24.	They also concluded that there had been inadequate consideration of mitigation (see paragraph 46 of the judgment).  This had been a difficult day and the circumstances were difficult and there was no evidence, the Tribunal found, that this had been properly taken into account by the Appellant’s managers.  They also found that the length of service had not properly been taken into account.  It was, perhaps, somewhat extravagant for the Tribunal to have said that, based on their experience, “no reasonable employer would have dismissed an employee after 23 years of service for the single act of consuming a piece of garlic bread which would otherwise have been thrown away”. But whether or not that overstated the case, it is nothing that assists us in disposing of this appeal.

25.	The Tribunal then summarised their findings at paragraph 48.  In the next paragraph, the Employment Tribunal turned to the issue of race discrimination.  The racial ground relied upon was that Mr Elkiyari is of Moroccan national origin.  So the Tribunal directed itself that section 54A of the Race Relations Act was engaged or putting it more simply that the reverse burden of proof applied (see paragraph 49).  At paragraph 50 they direct themselves as to the well‑known cases of Igen v Wong [2005] ICR 931 and Madarassy v Nomura International [2007] ICR 867 and they say this at paragraph 50:  

"The primary facts that the Claimant has proved, is that three employees who are not of Moroccan national origin consumed food without authority, (or, to put it another way, in the Respondent's characterisation, 'stole' food belonging to the Respondent) and were not dismissed.  In our view, on the basis of those facts we could conclude that the Claimant was discriminated against on the grounds of his Moroccan national origin."

26.	They go on at paragraph 51 to say:  

"The burden of proof shifts to the Respondent. We find that the Respondent has not satisfied us that the dismissal of the Claimant had nothing whatsoever to do with his Moroccan national origin. The Respondent has not given any explanation as to why the two Portuguese employees and the Sri Lankan employee were not dismissed for similar conduct, whereas the Claimant was. As the Respondent has not discharged the burden of proof, we are bound to find that the complaint of racial discrimination is well founded. Our unanimous judgment is that the Claimant's dismissal was an act of racial discrimination." 

Submissions
27.	Mr Sonaike, on behalf of the employer, submits that the Employment Tribunal have gone wrong in this case in a number of different ways.  Firstly, he submits that the Tribunal has applied the reverse burden of proof, when the matters set out as triggering that reverse burden of proof at paragraph 50 were not sufficient to do so.  Accordingly, paragraph 51 is nothing to the point because the burden of proof did not require any explanation to be put forward by the Appellant and therefore the Employment Tribunal have fallen into error.

28.	He secondly submitted that, in any event, the Tribunal had looked at this matter in terms of unfair dismissal and had arrived at a reason for dismissal.  They stated it a number of times, as we have indicated, in the quotation set out above.  That, submits Mr Sonaike, was the reason for dismissal and that being the reason for dismissal, there is no room whatsoever for the Tribunal to have, in effect, intruded a second reason for dismissal, displacing the first reason.  Either the reason is that he was dismissed because he had eaten food or that he was dismissed because he is of Moroccan origin.  There is no room for the two to sit together.

29.	At paragraph 6 of his Notice of Appeal, in relation to that alternative, Mr Sonaike put forward a further alternative that either there was an error of law or that it was a conclusion no reasonable Tribunal properly directing itself as to the law could have reached.  So, in the grounds of appeal perversity was relied upon.  In fact, in the course of developing his submissions Mr Sonaike did not really emphasise perversity and he nailed his colours firmly to error of law either in relation to the triggering of the burden of proof or in relation to having supplanted one reason with another in circumstances where, as he put it, the authorities were clear that you could not do that.  He relied, firstly, on the judgment of Mummery LJ in Madarassy v Nomura International Plc [2007] ICR 867.  At paragraph 54, page 878C, Mummery LJ had said, as to the submission of the Appellant in that case:  

"I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her. This analysis is not supported by Igen v. Wong nor by any of the later cases in this court and in the Employment Appeal Tribunal. "  

At paragraph 55 the learned Judge went on: 

"In my judgment, the correct legal position is made plain in paragraphs 28 and 29 of the judgment in Igen v. Wong"  

Having quoted them, he then goes on at paragraph 56 to say:  

"The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. "  

30.	He continues at paragraph 57:  

"'Could conclude' in section 63A(2) [ which effectively is the equivalent of  section 54A(2)] must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment."  

31.	He goes on to say in the following paragraph, paragraph 58, that absence of an adequate explanation is not relevant to whether there is a prima facie case of discrimination by the Respondent.  

32.	As to his second point, Mr Sonaike submitted that if one looked at Igen v Wong, and Chamberlain v Emokpae (decided together with Igen) and Laing v Manchester City Council [2006] ICR 1519, one would see, in particular in passages in Chamberlain v Emokpae at page 951, that one reason for dismissal eliminates any other potential reason.  In paragraph 54 of the judgment, the reason for dismissal in that case is analysed in these terms: 

"The claim was put on the basis that she was dismissed because of rumours about a relationship between her and Mr Emezie and that such rumours would not have occurred in relation to a male employee....  
55. The employment tribunal commented that the case was not about whether there was an improper relationship between Mr Emezie and Ms Emokpae (it made no findings on that) but about the reason for her dismissal." 

33.	Mr Sonaike relies on the passage, at paragraph 64, page 953 of the report, which reads as follows:  

"In our judgment, Mr Purchase is correct in his submissions. Ms Emokpae unequivocally asserted that she was dismissed because of the rumours. It is not enough that there would have been no rumours but for Ms Emokpae being a woman. The employment tribunal had to be able to infer that the reason in the mind of Mr Emezie was her sex, but the tribunal's acceptance of the rumours as the reason for dismissal shows that she was not dismissed on the ground of her sex."  

34.	Then at paragraph 66 the following appears: 

"For these reasons we conclude that, in the light of the finding that the reason for the dismissal was the rumours and not on the ground of Ms Emokpae's sex, her case fails at the first stage. In truth she is the innocent victim of an unfair dismissal, but, unfortunately for her, because she was employed for such a short period she cannot obtain redress for this from the employment tribunal."  

35.	Of course that is not the situation here where the Respondent succeeded in his claim of unfair dismissal, but Mr Sonaike submits that it is the right approach to cases of the kind, where a very definite reason for dismissal has been found.  An Employment Tribunal cannot sidestep, as it were, and produce alongside the reason found in one context, another reason for dismissal in a different context.  He submitted also that support for his proposition could be seen in the judgment of the division of this Employment Appeal Tribunal presided over by Elias J in the case of Laing v Manchester City Council; at paragraph 87, page 1535D, the following appears:  

"Again, we think there is nothing in any of these points.  What the Tribunal had to decide here was why Mr Finnegan acted as he did. He gave reasons for that and he was found to be an honest witness. These reasons were not connected with the fact that there had been allegations of race discrimination made against Ms Taylor. The Tribunal had to determine whether they accepted that that was truly the case."  

36.	Then at paragraph 90, on the same page at H: 

"Nor in our view is it possibly an error for the Tribunal not to have in terms referred to the possibility of unconscious discrimination.  Its reasons clearly negate any such finding."  

37.	So submitted Mr Sonaike, there could be a situation where the reason put forward by the employer was a sham; there might be situations where the reason put forward by the employer was not in fact the real reason, although the employer was not in the least dishonest but was in fact subconsciously disguising one reason for another because the subconscious reason was race discrimination.  None of that has been found in the present case.  

38.	Finally, Mr Sonaike, probably as part of his main submissions on race discrimination, drew attention to the fact that the Employment Tribunal had not made any findings or drawn any conclusions about some evidence that was given to them by Mr Newbert that after this dismissal another employee, a man of Italian origin, had been dismissed for eating food on the premises.  

39.	In this context, Mr Sonaike referred us to the case of Aziz v First Division Association (FDA) [2010] EWCA Civ 304.  It is a case which mainly concerns whether or not there was a continuing state of affairs.  Mr Sonaike submitted that there were passages in the case that were of assistance to us.  We have to say that we did not find the case to be directly in point and we did not think it could help.  However, in relation to Mr Newbert's evidence, which he said the Tribunal had not addressed, he drew our attention to rule 30(6) of the Employment Tribunal Rules, which give details as to what should be set out in an Employment Tribunal decision.  This, submitted Mr Sonaike, was an issue in the case, which has found no expression whatsoever in the judgment.  

40.	Miss Motragi, on behalf of the Respondent, put this case as high as being a case of classic race discrimination.  She said that what had been pointed to were different comparators, with different outcomes and that in those circumstances the reverse burden of proof classically had been engaged.  In both Igen v Wong and in Network Rail Infrastructure v Griffiths‑Henry [2006] IRLR 865, which considered Igen v Wong, the possibility that where there was a broader context or other factors, apart from simply a difference of outcome and a difference of race, would mean that it was perfectly proper for the Employment Tribunal to reverse the burden of proof.  She referred us to paragraph 15 of Griffiths‑Henry.  Paragraph 15 showed that it is not simply a question as to whether or not somebody is black and is less favourably treated as opposed to somebody being white and more favourably treated.  The general facts that surround those bald statements can make all the difference.  Whilst the law may be that it is not enough to trigger the reverse burden of proof simply to show difference of outcome and difference of race, if the circumstances are examined, as was the case in Griffiths‑Henry, then one may find a whole range of matters that have to be put into the equation.  She referred also to paragraph 16 and she was at pains to emphasise that cases such Igen v Wong were cases about hypothetical comparators.  The position is different, submits Miss Motragi, where, as in this case, there is an actual comparator.  

41.	What were the facts of this case?  There were three people of three different national origins who had all been more favourably treated than the Respondent, who was of Moroccan origin.  What the Tribunal had found at other parts of its decision was unreasonable treatment by the employer.  Indeed the Tribunal described it as "inequitable" treatment.  This was a case where that treatment could make a difference.  All these features should be weighed in the balance.  In that context she pointed to the Igen v Wong case again and made reference to page 947 and to a series of paragraphs, paragraph 46, 48, 49 and 51, which, she submitted, showed that that there was a world of difference between the case of a hypothetical comparator and this case.  Here, the Employment Tribunal, admittedly, in the context of unfair dismissal, had made a range of findings particularly in paragraphs 43 and 44 that other cases had not been properly investigated.  That was transportable from the unfair dismissal part of the case into the race discrimination part of the case.

42.	What was required was that one should look at a broader and more general context.  That was clear from the case of Brown v Croydon London Borough Council [2007] ICR 909, which was one of the three cases before the Court of Appeal when it decided the Madarassy case.  We also looked at the case of Laing and Ms Motragi took us, in particular, to paragraphs 61 and 62 and 67 to 70 of Madarassy where there is a discussion of the case of Laing.  The discussion is as to whether or not in all cases one needs to embark on a two‑stage analysis.  It had been made clear by the President, Elias J, in the case of Laing, that there will be cases where it is not necessary to embark upon a two‑stage analysis.  This has been accepted by the Court of Appeal in Madarassy.

43.	So far as the evidence that came from Mr Newbert and related to the Italian, who was dismissed, Miss Motragi submits that one cannot expect absolutely everything to appear in the judgment of an Employment Appeal Tribunal.  She referred us to the well‑known passage of Buxton LJ at paragraph 21 of his judgment in the case of Balfour Beatty Limited v Wilcox & Ors [2007] IRLR 63.  That is an explanation as to why the Employment Tribunal cannot be in error for not mentioning the Italian, or for that matter for not stating that they were relying on the factors that appear under the unfair dismissal heading in the context of race discrimination.

Conclusions
44.	We have reached the following conclusions.  Firstly, we do not accept Mr Sonaike's argument that this is a case where it was impossible for there to be an analysis of the kind arrived at by the Employment Tribunal.  Whatever may have been the position in the cases that he relied upon, in our judgment, cases turn on their own fact (and for that reason we distinguish Chamberlain v Emokpae, where the facts were very different to the instant case).  There will be cases, of which we think the instant case is an example, where the Employment Tribunal will be perfectly entitled to find what was the reasonable belief of the employer as to the reason for dismissal, on the one hand, but entitled to conclude, by virtue of the application of the reverse burden of proof and the failure of the employer to discharge that burden, that the reason was also a reason that related to race discrimination.

45.	The explanation for that is not hard to find.  It is that whilst under section 98(1) of the Employment Rights Act 1996 (“ERA”), the Employment Tribunal must find what the reason or the principal reason for the dismissal was, direct discrimination is defined by subsection (1)(a) of the Race Relations Act 1976 (“RRA”), which was still in force at the time of the hearing of this case, as less favourable treatment on racial grounds or in this case on grounds of national origin.  That the discrimination may be unlawful by virtue of Part II of the ERA and in the employment context by virtue of section 4(2)(c) of the RRA because the discrimination is by reason of dismissal, does not mean that the less favourable treatment under section 1(1)(a) and the reason for dismissal under section 98(1) are always bound to be the same.  The reason for dismissal in this case, as stated by the Tribunal was a reasonable belief in misconduct.  The treatment that was complained of was to dismiss the Respondent, a man of Moroccan origin, because it was believed that he had engaged in that conduct.  In our judgment the two things are not exactly the same.

46.	Whilst in some cases, of which the authorities cited by Mr Sonaike may be prime examples, one cannot displace the other, it seems to us that where, particularly the burden of proof is reversed and the employer fails to discharge that burden, then two somewhat different situations quite properly co‑exist.  Moreover, it seems to us that this is precisely why Mummery LJ, in North London Ambulance Service v Small indicated that in some cases one may have to divide not only the analytical exercise but even the evidential fact finding in order to keep apart evidence that relates to whether or not there is a reasonable belief, on the one hand, and evidence as to whether something has actually happened on the other.  The former would be relevant to a misconduct dismissal.  The latter would be relevant to a breach of contract, to constructive dismissal and to race and sex discrimination.  Those require the things to actually have happened or be proved.  In misconduct dismissals it is a question as to whether there is reasonable belief something has occurred.  That is not necessarily the same thing as something occurring and the Court of Appeal has said that Employment Tribunals should be astute to recognise the difference.

47.	We turn then to the second substantive matter in this case (although it was the first point that was argued, we have found it convenient to address them in reverse order).  Miss Motragi has submitted that what we must do is look through the judgment and find the broader context into which the decision of the Employment Tribunal on race discrimination, very briefly set out at paragraphs 50 and 51 of the judgment, fits.  She submits, consistent with the remarks made by Buxton LJ in the Balfour Beatty case that the Employment Tribunal is not to be straitjacketed and certainly not to be faulted because it has failed to gather up, even by a brief reference, the other aspects of the decision that might bear on the question as to whether the burden of proof had shifted.  We cannot accept that submission.  

48.	We take the view that, on these facts, it was not enough to shift the burden of proof to simply identify the fact that others had been treated more favourably and the Respondent treated less favourably or, in simple terms, he had been dismissed and they had not, and that they were respectively Portuguese and Sri Lankan and he was Moroccan, which is all that is stated at paragraph 51 of the judgment.

49.	Whether or not this could have been saved by a few simple sentences as part of the reasoning is a matter for conjecture.   In our judgment that the broader context has not been set out as part of the paragraph 51 analysis, nor are we confident that necessarily the broader context would justify the shifting of the burden of proof.  So we do not have enough confidence as to these various matters to make a judgment ourselves.  We think that for us to attempt it would be a usurpation of the proper function of the Employment Tribunal.

50.	Accordingly, we take the view that the Employment Tribunal did fall into error when it concluded, as we think it plainly does at paragraph 51, that the difference in treatment and the difference in origin are sufficient to trigger the reverse burden of proof.  We cannot make a decision about this ourselves and we take the view that the matter must be remitted.  We will hear submissions as to remission in a moment.  

51.	Finally, we deal with the issue of the evidence that was never addressed by the Employment Tribunal.  Whilst we have much sympathy with Miss Motragi's submission that a Tribunal cannot be blamed for not dealing with absolutely everything, we think that this was of sufficient moment for it to have been specifically addressed.  If one considers the Employment Tribunal Rules and in particular the wording of rule 30(6)(a), (b), (c) and (e), it seems to us that this was an issue that had some bearing on whether or not the reverse burden of proof should have been triggered and, for that matter, on whether, if it had been triggered, there should have been a finding of race discrimination or not.  It was plainly an issue.  If it was not to be determined it should have been explained why it was not to be determined.  If it was not important, similarly, an explanation should have been given.  A finding of fact should have been made in relation to it and whilst we would not wish to straitjacket any Employment Tribunal, as Buxton LJ has cautioned us against doing, nevertheless we think that this is something that should have found a place in the Employment Tribunal's decision.  

52.	Accordingly for that reason also we would remit the matter.  Obviously, it is not a matter that we can make any decision about ourselves and so, on those two grounds, the appeal will be allowed and we will now hear submissions as to the correct disposal.