Appeal No.	 EAT/129/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 June 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS R CHAPMAN
LORD GLADWIN OF CLEE CBE JP

MR I AMACHREE	APPELLANT

NOTTINGHAM CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S SIMBLETT
(of Counsel)
Messrs Curtis & Parkinson
Solicitors
96 Main Street
Bulwell
Nottingham
NG6 8ET	
For the Respondents	MS D DAVIES
(of Counsel)
The Solicitor
Nottingham City Council
The Guildhall
South Sherwood Street
Nottingham
NG1 4BT	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal against the decision of an Industrial Tribunal held at Nottingham on 3rd June to 7th June 1996. The applicant, Mr Amachree had made a complaint against his former employers, the Nottingham City Council, that they had victimised him on racial grounds, had unfairly dismissed him and had unlawfully dismissed him by reason of his race. The tribunal’s decision is contained in writing and was sent to the parties on 15th July 1996. It was a majority decision of the Industrial Tribunal that Mr Amachree was not unfairly dismissed and was not subjected to racial discrimination. 

	He had presented two applications to the tribunal. First, one which alleged racial discrimination; and later, a subsequent application alleging racial discrimination and unfair dismissal. The applications were presented close together in time. There was a single Notice of Appearance, and the applications, very sensibly, were heard together.

	The Industrial Tribunal’s decision in many ways is, if we may respectfully say so, a model of its kind. In paragraph 3 they identified 12 specific complaints of racial discrimination. They then in their decision deal with each of those complaints. Because the decision speaks for itself, and because we take the view that there is no need to set out the facts in great detail for the purposes of this appeal, we can deal with each of those 12 complaints by referring to the passages in the decision which concern them.

	The first was the move of the applicant to Exchange Building. That was referred to in paragraphs 6 and 7 of the tribunal’s decision, and their conclusion is to be found at paragraph 30 where the tribunal said this:

“30 ... The first allegation raised, was that the move to Exchange Building was discriminatory of the applicant. We all accept that the application went back to Exchange Building by agreement and did no object. We are satisfied that until the hearing of this Tribunal the applicant had not raised that as an objection. We also take account of the fact that the consolidated settlement of the original complaint included a provision, which was no doubt put in at the applicant’s request, that he would not be forced to return to Radford Boulevard.”

	The second complaint related the movement of cabinets in the place of work, so it was alleged, to isolate the applicant. That was dealt with at paragraph 9 of the tribunal’s decision and their conclusion is set out at paragraph 31 where they accepted that the positioning of the cabinets was done for administrative reasons, and was nothing to do with the applicant’s race or the fact that he had previously raised racial complaints.

	The third allegation was that an electrical socket had been tampered with so as to make it dangerous for the applicant. That was considered at paragraph 10 of the tribunal’s decision and rejected at paragraph 32, where they find that there was no evidence to suggest that the incident relating to the electric socket was deliberately targeted against the applicant. They found it very significant that he had not raised this complaint previously, and they noted that he had raised a formal grievance about the treatment he felt he was receiving some five weeks after he had returned to work, and as they put it:

“... it is inconceivable that he would not have raised an allegation of this seriousness, if there was anything in it.”

	The fourth allegation related to workers at the Exchange Building treating the applicant badly by talking about the equal opportunities policy. That incident is elaborated in paragraphs 12 and 13 of the decision and resolved at paragraph 33 where the tribunal unanimously reject the allegation that he was discriminated against in the way he was treated when he returned to Exchange Building by the staff and in particular in relation to the discussion about race relations.

	The fifth allegation is that the respondent Authority had used the organisation Age Concern to put unfair pressure on the applicant. That was elaborated at paragraph 16 and rejected by the tribunal at paragraph 34 when they said that there was nothing to suggest that the applicant did not want to continue doing the Age Concern work; that there was a spontaneous dispute effectively between the applicant and somebody in Age Concern, and that when it came to a formal grievance, the applicant was backed up by his senior management. Therefore, that allegation of race discrimination was rejected.

	They refer to an allegation that at a meeting on 16th February 1994, the applicant was subjected to jibes and taunts that he was lying. That was elaborated at paragraph 17 and dealt with by the tribunal at paragraph 35. They referred to the fact that there was a conflict of evidence as to what took place at that meeting, and they said this:

“35 ... It simply does not make sense that this meeting involved racist allegation and threats when three of the six people were themselves black. The minority member prefers the applicant’s version of this meeting because he wrote a note on the following day as to what had occurred.”

	As to the seventh allegation. this was that the applicant was the only person who had to report to two team leaders. That came about in the circumstances outlined in paragraph 19 of the tribunal’s decision, where it was noted that by reason of the fact that the applicant was located in one office, whereas his work colleagues were located in another, he was effectively subjected to two superiors. The tribunal said this:

“19 ... This was to some extent clarified in that it was to be Mr Goodwin who was the applicant’s boss and, to avoid difficulties of work being given to him from Radcliffe Boulevard (which was then back under the control of Mr Dawson), it was arranged that the instructions for work would go from Mr Dawson to Mr Goodwin and then to the applicant. ...”

They rejected this allegation by a majority at paragraph 36, where they say that:

“36 ... We accept it arises simply from the physical location which was agreed with the applicant and did not arise either from the fact that the applicant had made previous, complaints nor the fact that he was black. We are also not satisfied that it amounted to a detriment of any significance. ...”

	The eighth allegation was that when the applicant had been off work sick and had returned in November 1993, he was not given any work to do for two weeks. That was referred to at paragraph 11 of the decision and was rejected at paragraph 37.

	As to the ninth allegation, that he was not appointed as a Team Leader because the post was a false post, paragraph 20 of the decision sets out the background facts and paragraph 38 represents the tribunal’s conclusion:

“20 ... The allegation put to us of a conspiracy whereby a false job was created just to cause the applicant upset, seems to us to be entirely unbelievable. There is no evidence to back it up. The respondent’s evidence as to what happened in relation to the team leader post seems to us to be much more likely.”

	There was then an allegation made against the applicant that he had impersonated a Mr Ishak and the applicant complained that this allegation had not been properly investigated. That is referred to at paragraph 21 of the decision and rejected at paragraph 39 where they say this:

“39    We are also unanimous in rejecting the applicant’s allegation that the incident relating to Mr Ishak was concocted as a matter of discrimination against him. We take account of the fact that this allegation came from a completely separate department of the council. We also accept Mr Ishak’s evidence, which is contrary to the applicant’s, that it was the applicant who did the talking. It would certainly be unusual for a council officer to ring the Customer Services Section of the council on behalf of someone else. Whether or not the complaint was ultimately justified, we are satisfied that there was sufficient of an issue for it to be investigated and that it was a genuine issue caused by the applicant’s own action. There is evidence to show that it was at least initially investigated, although it was not taken further following the applicant’s suspension.”

	The eleventh allegation was that the dismissal was racially motivated, to which we will return in a moment.

	The twelfth allegation was that there was a general failure to resolve the difficulty the applicant was in which was discriminatory of him, and as we understand it, this allegation of a very general nature, was rejected by the Industrial Tribunal at paragraph 41 of their decision where they found as follows:

“41    It seems to us that the respondent was doing the best it could to accommodate the applicant after his return to work following the discrimination he had suffered. Whether or not the managers dealt with everything in the best possible way, we are satisfied that they were quite genuine in their efforts to accommodate him and that he was not ill treated in any way because of his race or because of his earlier complaint.”

	We turn, therefore, to what was in issue on this appeal which was essentially related to the dismissal, whether it was fair and whether it was racially motivated.

	The incident which gave rise to the dismissal stemmed from a meeting which took place on 10th May 1995, when one of the applicant’s managers indicated that he had wanted volunteers to man an exhibition which was to be put on. The applicant said that he was not interested. The manager put pressure on him, as he did on other people, to volunteer, and then after the meeting the applicant spoke to one of the other people who had been present at the meeting, a Mr Wilson, about the way in which the manager had conducted the meeting. It was as a result of alleged conversations with Mr Wilson and others, that the applicant was subsequently dismissed.

	Essentially, it was the employer’s case that the applicant had said to Mr Wilson after the meeting on 10th May 1995:

“I have got a secret, he does not know it but I have got a gun at home and I am going to bring it in and put him to his head and pull the trigger and then I am going to shoot everyone else who I think is against me.”

	The manager did not get to hear of the alleged threat until Friday, 12th May. When he discovered what was happening, he got in touch with the Director of Housing and the matter was in due course referred to the Police who arrested the applicant and charged him with threatening to kill the manager. The applicant was charged on 16th May 1995. The case was adjourned. On 31st July 1995 the Crown Prosecution  notified the applicant that the prosecution would be discontinued.

	Following the allegation and as a result of it, the applicant was suspended and the Director of Housing arranged for the allegation to be investigated. The question was referred to Mr Brazier, the Assistant Director of Development in the Housing Department. He interviewed a large number of members of staff involved, and made notes of what they were saying to him. The notes were typed up and sent to the individuals for their consideration. During the course of this investigation, the applicant himself was interviewed by Mr Brazier and was accompanied by his solicitor. It is to be noted that he denied having made any of the alleged threats and his solicitor pointed out that in certain respects what Mr Wilson had told Mr Brazier was inconsistent with what Mr Wilson had told the Police.

	In due course, the employers resolved to hold a disciplinary hearing to which the applicant was invited. The letter inviting him to attend is dated 23rd October 1995 and says, so far as is relevant to this case, as follows:

“The Hearing will be held in accordance with the City Council’s Disciplinary Procedure to discuss the allegation that you used a threat of an act of violence towards another member of staff.
You should be aware that this allegation is potentially gross misconduct and could lead to your dismissal.
You may be accompanied at the Hearing by a friend or work colleague. I enclose copies of the statements of the witnesses who have been interviewed by Mr Brazier. If you intend to call any witnesses at the Hearing you must give me notice beforehand of the names of those witnesses.”

	The hearing took place on 1st December 1995, and the applicant was represented by his solicitor. The City Council have an agreed Disciplinary Procedure which we understand did not feature either largely or at all at the Industrial Tribunal hearing. But at the disciplinary hearing it is plain from the letter of dismissal which is dated 5th December 1995, that the solicitor representing the applicant said that he felt that the people who had made the allegations should be at the hearing so that he could question them. The letter says:

“Mr Ennals [the solicitor] felt that your remarks during the three conversations had been misinterpreted by staff and if said were far more likely to refer to Mr Amachree wishing to raise grievances rather than threaten anyone with violence. Mr Ennals pointed to the poor relationship, which had a long history between you and Mr Dawson which he felt could have played a part in the misinterpretation of your remarks during the three conversations.”

	Having made that request, it was refused by the officer conducting the enquiry, and instead, the manager was called to give evidence. It is clear that no threat had been made directly to him. It is also clear that the solicitor suggested that his evidence was irrelevant. That was not a submission which found favour with the disciplinary officer, and the letter of dismissal continues as follows:

“I considered all the witness statements and the evidence from Mr Dawson from the hearing very carefully. I considered that there was sufficient evidence to proceed with the Hearing without seeing any other witnesses. ...”
[Then later on]
“Having examined all these matters in great detail, I am satisfied that the staff who gave evidence were being truthful. Whilst appreciating that there has been a long history of disputes between you and some of your colleagues I find no evidence that these allegations have been invented. I view your comments in relation to Mr Dawson to be a threat of an act of violence against a fellow employee. I am satisfied that Mr Dawson and his family took the threat seriously and were fearful of their safety. I also consider your behaviour to have been grossly intimidatory in nature.
I consider your actions in this matter to constitute gross misconduct of such a nature that the Council is unable to tolerate your continued presence at work.”

	The applicant appealed against the dismissal. And under the procedure that appeal was to be to the Nottingham City Council Appeals Committee. Again, as we understand it, no evidence was given by any of the people who were supposed to have heard the various intimidatory remarks made by the applicant. The panel decided to dismiss the applicant’s appeal.

	In considering the question as to whether there was anything unfair in the dismissal and whether it was motivated by race, the tribunal were split. The majority of the tribunal considered the dismissal was fair and was not racially motivated. They said this:

“42 ... We are satisfied that there was a thorough investigation both by Mr Brazier and through the disciplinary and appeal processes. The applicant was able to give his full version throughout and knew what allegations he was to face. There was adequate evidence on which a reasonable person could come to the conclusion that the applicant had made the threats to Mr Dawson as outline. Many an employer would have called the witnesses to give evidence in person before the disciplinary hearing. We accept, however, that disciplinary hearings are not courts and it is open to an employer to carry out a procedure which may be different from court procedures, provided that they are not unfair to the employee.
43    In this situation there was direct conflict between what the applicant said and what other witnesses said. It is very unlikely that the witnesses would have gone back on their allegations of the threats made by the applicant. If the applicant had been suggesting that there was an error and that the witnesses had misunderstood him then in that situation it may have been necessary for the witnesses to be questioned by Mr Thompson to clarify the position. ...”

They then went on to say:

“We are satisfied, however, that despite what the applicant had said to us today, he had never previously raised the suggestion that Mr Wilson had misheard him when he made a comment about having a gun held to his head.”

	Before us, it was strongly argued that the decision of the majority of the tribunal is to be categorised as perverse or as involving a fundamental misunderstanding of the evidence. 

	In response, on behalf of the City Council, it was stressed that this was a judgment for the Industrial Tribunal to take, that we should not interfere with such judgment and substitute our own decision for that of the Industrial Tribunal. It was urged on us that before we could categorise a decision as perverse, we should apply our minds to the various authorities which make it quite plain that perversity is a rare conclusion for this Employment Appeal Tribunal to arrive at.

	Our approach to this case is very much on the basis that which Ms Davies on behalf of the Nottingham City Council, submitted is the correct one. We should be very slow to interfere with a decision of an industrial jury on a question such as whether the procedure which was adopted fell within the bands of reasonableness which a fair-minded employer could have adopted. But that said, it does seem to us that the tribunal’s conclusion that it was a fair procedure even though at no stage had the applicant had a chance to confront or question any of the people who were making the allegations against him was perverse. We are satisfied that the tribunal have erred in law and misdirected themselves. 

	It seems to us in the first place that their conclusion that “if the applicant had been suggesting that there was an error and that the witnesses had misunderstood him then in that situation if may have been necessary for the witnesses to be questioned by Mr Thompson to clarify the position.” conflicts with the letter of dismissal. It is quite clear on the facts of this case that indeed the applicant was saying that there was considerable room for the conclusion that the witnesses had misunderstood what was being said in the sense that what was being said, if said, could not have been taken seriously. 

	In the first place, the witness to whom the original remark was said to have been made by the applicant, contained a statement that Mr Wilson turned to a colleague and said “Do you think he is serious” to which the colleague said “No I do not think he is serious”. He said he had not heard the full conversation, but had heard the word “gun” mentioned.

	Secondly, in relation to the witness to whom we have just referred, it is plain that he did not mention to anyone about the conversation that he heard a part of, thus indicating that nothing that was said in his presence was regarded by him as particularly serious. 

	Again, there was a further statement from another witness, a Mr Parboo, where Mr Amachree, the applicant, is said to have said “Get Tony Dawson” but he did not elaborate on it. Mr Parboo did not indicate that he required any elaboration. And Mr Parboo concluded by saying that he thought it was difficult to judge whether any alleged threats made by Mr Amachree were in fact meant and would be carried out.

	In the decision of the minority member it was accurately stated, as we understand it, on the uncontradicted evidence, that the way the threat was communicated to Mr Dawson, the manager, was via Mr Wilson to a Mr Lucie, and then from Mr Lucie to Mr Dawson. The lay member said this:

“This threat was never made directly to Mr Dawson and was never reported directly from Mr Wilson to Mr Dawson, but through a third party, a Mr Lucie, who had also received a letter regarding racial harassment on 20 January 1994 ie both Mr Wilson and Mr Lucie had been part of the original department where racial harassment and victimisation had been found to exist. Further statements from fellow employees give evidence to this effect: ...”

Then the minority lay member sets them out. The judgment of the minority continues:

“Mr Lucie’s statement goes on to say that he was asked by Martin Wilson if he had told Tony Dawson about the threat but Martin Wilson “did not seem to want to do this”.
Mr Lucie’s written statement was taken on 26 May 16 days after the incident and conversations had taken place, as most statements were taken around that time.
Mr Lucie’s statement clearly gives evidence that Martin Wilson did not want to repeat the alleged threat to Tony Dawson the manager of the department.
... Tony Dawson’s statement, taken on 8 June 1995 states that Mr Lucie did not contact him to report the alleged threats, but instead waited until Mr Lucie has other matters to attend to which Mr Dawson and at this point and at the end of the meeting about “other matters”. Mr Lucie advised Mr Dawson of the conversation he had heard about second-hand from Mr Wilson but only then pressed for information by Mr Dawson.
Mr Dawson had not been offered the information from Mr Lucie, instead Mr Dawson pressed Mr Lucie to tell him or divulge some information that he felt was on Mr Lucie’s mind and it was only at this point that Mr Lucie recounted the conversation he had had with Martin Wilson.
Mr Dawson’s statement goes on to say that he (Dawson) saw Martin Wilson at 4 pm 12 May 1995 and asked Mr Wilson if there was anything he wanted to tell him.
Mr Dawson’s statement is that he had to ‘drag’ the information out of Martin Wilson.”

	Against that background, it seems to us quite obvious that there must have been a real question in any reasonable employer’s mind as to whether even if the applicant had, contrary to his denial, made any of the alleged remarks, they were to be taken seriously. For that purpose, it seems to us, that any reasonable employer would have wished to have heard from the person to whom the threats had allegedly been made. The statement made by the dismissing officer that he considered there was sufficient evidence to proceed with the hearing without seeing any of the other witnesses, and that he was satisfied that those who had given evidence were being truthful, was, if we might respectfully say so, a conclusion which was arrived at in an unfair manner.

	The question arises always as to the extent of an investigation which is required to satisfy what is called the Burchell test. It seems to us that we cannot improve on the dictum of Bristow J in the case of Khanum v Mid Glamorgan Health Authority [1979] ICR 40 at page 45 where he said this:

	“We appreciate, of course, the force of the proposition that it is desirable to test evidence by cross-examination in order to get at the truth. We find it difficult to understand how, short of that, there can be the sort of virtue in having the patients’ story told in person which makes a failure to insist upon this a breach of natural justice. On the authorities cited to us it is clear that in some circumstances it may amount to a breach of natural justice to refuse a party the right to cross-examine a witness who has given evidence, or not to afford the opportunity for cross-examination: see e.g., Osgood v. Nelson (1872) L.R. 5 H.L. 636; Marriott v. Minister of Health [1937] 1 K.B. 128 and Nicholson v. Secretary of State for Energy, The Times, August 6, 1977. See also the Canadian decisions of Strathcona (County) No 20 and Chemcell Ltd. v. Provincial Planning Board, City of Edmonton (1970) 75 W.W.R. 488. It is equally clear on authority that in some circumstances the failure to afford the opportunity for cross-examination is not a failure to follow the rules of natural justice: see e.g., T.A.Miller Ltd v. Minister of Housing and Local Government [1968] 1 W.L.R. 992 and Ceylon University v. Fernando [1960] 1 W.L.R. 223.
	Some of the authorities are not easily reconciled and we do not think it would be helpful to try to do so, for in the end how nearly a domestic disciplinary inquiry, or any other inquiry by a statutory body, a public statutory inquiry, or any other inquiry which has to make decisions must approach to the full-blown procedure of a court of justice in order to comply with the rules of natural justice is not doubt a matter of degree. But in our judgment as regards the sort of domestic tribunal with which we are concerned in this case the law is as it was expressed by Harman J. in Byrne v Kinematograph Renters Society Ltd [1958] 1 W.L.R. 762, 784 and approved and applied by the Privy Council to the context of a University Vice-Chancellor’s inquiry into cheating in examinations in Fernando’s Case:
	“What then are the requirements of natural justice is a case of this kind? First, I think that the person should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case: and thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more.”
	If you apply the law as so expressed to the proceedings of the domestic disciplinary inquiry at both levels in this case, each of the three requirements are amply fulfilled. We think it right to add that it would be surprising to find that a hearing conducted, as the appeals panel hearing was expressly conducted, in accordance with agreed draft Whitley Council procedures turned out to have been conducted in breach of the rules of natural justice.”

	That decision was considered in the case of Bentley Engineering Co Ltd v. Mistry [1979] ICR 47 and the judgment of the Employment Appeal Tribunal presided over by Slynn J at page 51:

“... We do not say that in every case any particular form of procedure has to be follows. We accept Miss Slade’s submission that there may be cases in which cross-examination is wholly unnecessary, and that even other methods of achieving natural justice may not be wholly appropriate or required by a situation where an employer is considering an incident which has happened in the course of everyday work. On the other hand it is clear that in a matter of this kind, natural justice does require not merely that a man shall have a chance to state his own case in detail; he must know in one way or another sufficiently what is being said against him, he cannot properly put forward his own case. It may be, according to the facts, that what is said against him can be communicated to him in writing, or it may be that it is sufficient if he hears what the other protagonist is saying, or it may be that, in an appropriate case, for matters which have been said by other to be put orally in sufficient detail is an adequate satisfaction of the requirements of natural justice. As Bristow J. said, it is all a question of degree. In the present case, the industrial tribunal have found, as is indeed unchallenged, that the employee did not hear Mr. Singh; the employee did not have the written statements of the other witnesses, nor any written statement of Mr. Singh; he did not have the chance to cross-examine. It is clear, as Miss Slade has pointed out to us, from the notes of evidence in the course of the hearing, that certain matters were put to the employee. He was asked to explain how the broom in his office had come to be broken. He was asked to demonstrate the way in which he said that the broom had been swung. But the real issue here was not whether there had been a fight. There clearly had been a fight and both men appear to have been saying so. The real issue here is who or what had provoked the fight, and we consider that the industrial tribunal are really saying that because the employee did not have these various statements, and did not have the opportunity of listening to Mr. Singh or of asking him questions, he really did not have an opportunity of knowing in sufficient detail what was being said against him on the issue which really mattered. Accordingly, we think it is for that reason coupled, on the facts of this case, with the less significant reason that the company had departed from its own conditions which led the tribunal to the view to which they came. ...” 

	It seem to us in these circumstances that it will be a question of judgment in every case as to whether fairness requires an employer in carrying out its investigation and deciding whether to dismiss to permit the person against whom allegations are made an opportunity to ask questions of the people who are making the allegations against him. There is no fixed rule. 

	In this case it can be said that to allow the witnesses to give evidence and to enable the applicant’s representative to question them was at least consistent with the format of the agreed procedure, and was plainly in the mind of the Director of Housing by his letter of 23rd October 1995 to which we have referred.

	It seems to us that had the Industrial Tribunal majority borne in mind the fact that the solicitor had simply made the very suggestion which they did not think had been made, it is most unlikely that they would have arrived at their decision. The solicitor did say that the possibility for misunderstanding was there. It seems to us that that was obviously right given the factual background to the case.

	In addition, it was to be borne in mind that Mr Amachree had succeeded in a case of race discrimination against the Nottingham City Council at an earlier stage, and had been compensated by them. The allegations giving rise to that complaint were referred to by the Industrial Tribunal. When he returned to work, after a considerable period off work, whilst those matters were investigated and dealt with, there had been a continuing series of problems between the applicant and his employers. In a case of this sort, where there were sensitivities as to the possibility that he was being discriminated against yet again and or victimised by reason of his earlier allegations of discrimination, any reasonable employer would, in our judgment, have given him the opportunity to make out a case to the disciplinary panel that what ever he had said could not be construed as a serious threat which was capable of giving rise to a reasonable suspicion of gross misconduct.

	Accordingly, we are firmly of the view that is a case where the evidence has been misunderstood, or, alternatively, did not justify the conclusion which the majority arrived at. That produces this position. We are satisfied that the correct finding made by the Industrial Tribunal would have been that the dismissal was unfair. 

	During the course of argument, we discussed with Counsel what effect such a conclusion would have on the further proceedings which would be necessary as a result. 

	On behalf of the applicant, it was submitted that the tribunal should revert to the question as to whether if the dismissal was unfair, it was racially motivated. 

	It seems to us, on the fact of this case, that a case for unlawful discrimination in relation to the dismissal might have been open to the applicant if he was able to adduce evidence to show that, in the operation of the Council’s disciplinary code, parties were invariably entitled to question those who were making allegations against them, both at the first hearing and on the appeal. If such evidence had been given, the question then would have arisen why it was that Mr Amachree was refused the opportunity on this occasion, and in answering that question, regard would have been had to the colour and race of the comparators. We understand that there was no such evidence given to the Industrial Tribunal and therefore there would have been no basis on which the Industrial Tribunal could have drawn the inference that the dismissal which became unfair as a result of the way the disciplinary hearing was conducted, was tainted by race. It seems to us clear on the facts of this case that without such evidence, no tribunal could have concluded that the unfairness of the dismissal was as a result of racial motivation.

	That being so, we are content to say that the decision of the majority of the tribunal at paragraph 40 of their decision is not capable of being challenged here. In paragraph 40 they say this:

“40    There is nothing to suggest to us that the applicant’s dismissal was racially motivated. We accept that it arose from allegations made initially by Mr Wilson backed up by allegations from other members of staff which had to be investigated. Such a serious allegation could not have been ignored.”

	In those circumstances, having decided that we should substitute a finding of unfair dismissal for the decision arrived at by the majority in this case, and rejecting the argument that there is any complaint which can legitimately be made against the tribunal’s decision on race discrimination, the matter will have to be remitted for the question of compensation and remedy to be considered.

	On that issue we can indicate that it seems to us that the failure to call the relevant evidence at the disciplinary hearing is not a procedural defect of a sort that is contemplated in the Polkey decision, and therefore there cannot be any question in our judgment of there being a reduction on the basis that if the witnesses had been called he would have been dismissed in any event.

	On the other hand, the tribunal will wish to consider the question of contributory fault. We would not wish to decide that issue for the Industrial Tribunal who will have to consider it, but it does not appear to us that this would be a case where the contributory fault would be likely to exceed 50% as we read the evidence.

	Whether this should go back to the same or another tribunal was debated in argument. We are quite satisfied that it can be safely sent back to the same tribunal for them to carry out an assessment of the compensation and the degree to which the applicant contributed by his own conduct to his dismissal.

	We would like to end by paying tribute to the Industrial Tribunal, although we have disagreed with one important part of their conclusion. We were unanimously of the view that this was a carefully constructed decision and set out with considerable clarity. On this basis we allow the appeal and remit the matter back to the same Industrial Tribunal for them to assess compensation in the light of this decision.