Appeal No. UKEAT/0145/11/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 10 February 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR T STANWORTH
MR M CLANCY

MS F SEGOR	APPELLANT

GOODRICH ACTUATION SYSTEMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JAMES CHEGWIDDEN
(of Counsel)
(Bar Pro Bono Unit)	
For the Respondent
	MS NAOMI CUNNINGHAM
(of Counsel)
Instructed by:
Squire Sanders & Dempsey (UK) LLP Solicitors
Rutland House
148 Edmund Street
Birmingham
B3 2JR

SUMMARY
PRACTICE AND PROCEDURE
Withdrawal

The Tribunal rejected the evidence of the Claimant that she had been racially and sexually discriminated against as a French woman of black Afro‑Caribbean origin, save in one respect as to which it wished to hear more from the parties at a further hearing.  This was whether there was any defence to a claim for discrimination where it was admitted that the employer had not appointed the Claimant as a Project Manager (Military) because the US Government, as a major customer, had until 2007 proscribed French nationals from being engaged in such a capacity in the employment of those contracted to supply parts for arms and military aircraft (as were the Respondent employers).  At the hearing, the Employment Tribunal considered that the Claimant’s lay representative (a non‑practising barrister) had abandoned a claim that to apply a foreign requirement not to employ persons of her race was discriminatory, in order to focus on a claim that the employer more generally discriminated deliberately against her on the ground of her race, sex or nationality.

It was held that the ET did not take the correct approach in law to determining whether there had been an abandonment: it needed to know that any abandonment was clear, unambiguous and unequivocal, and that could not be said of what had happened before the Tribunal.

Remitted to the same Tribunal for further hearing.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	Lawyers may sometimes be accused of being too pedantic and precise in their use of language, particularly those who draft statutes.  However, this case serves as a salutary reminder of the importance of precision if what is said is to be clearly understood without room for misinterpretation.

Background
2.	The case is unusual.  It arises out of a decision made by the Employment Tribunal in Birmingham on 5 October 2010.  That decision followed an earlier hearing on a separate part of the case, during which the Tribunal had considered claims made by the Claimant that she had been discriminated against in a number of respects on the basis of her sex and race, including nationality, and allegations of harassment.  She had worked since 1998 for the Respondent, which is part of an international group engaged in the manufacture and testing of aerospace products for civil and military aircraft.  She was employed at the Wolverhampton site, having moved there from a French associated company in August 2005.  She is French by nationality; she is of black Afro‑Caribbean ethnicity.

3.	Her claims save in one respect were dismissed by a Judgment dated 16 June 2010.  The precise details of that are not material to the present appeal, but it is sufficient to say that the Tribunal considered and rejected each claim.  It found that the Claimant, though extremely hard‑working, was arrogant and unreliable as a witness, and it preferred the evidence in every respect that had been put forward by the Respondent’s witnesses.  However, it left unresolved one matter, because the Respondent argued that there was further assistance that it might give to the Tribunal to assist its resolution of that issue.  The Tribunal described that as “the ITAR issue”.  That acronym stands for International Trade in Arms Regulations; it is an American statutory provision, the effect of which was that before December 2007 it prevented French nationals working on US military projects.  So far as the Respondent employers were concerned, manufacturing licensing agreements (MLAs) were entered into between them and the US Government.  Those reflected ITAR in their terms.  Any breach of the MLAs was, we are told, capable of giving rise to criminal prosecution in the United States and exposing the employer to liability.

4.	After December 2007, however, ITAR took effect in an amended form.  European Union nationals were no longer within a proscribed class.  However, the MLAs previously entered into were not automatically and immediately revised upon the coming into effect of the new Regulations.  Some at any rate, to some extent at any rate, still continued to apply for some time in their original terms.  It may be, though we have not delved into the questions, that a failure to abide by those terms reflecting the old pre‑amendment ITAR provisions might give rise to legal sanctions so far as the United States were concerned.

5.	The ITAR issue arose because the Claimant was informed by Mr Mahon of the Respondent’s staff that she had not been appointed to the position of Programme Manager (Military) because she was a French national.  That was on 27 November 2008; it was therefore after the date upon which the old version of ITAR ceased to have effect.

6.	The Tribunal indicated in its first Judgment that it would welcome further submissions from the parties upon the defences available to the Respondent if the words spoken by Mr Mahon, which, it is common ground, were said, were not to be regarded as self‑evidently discriminatory and contrary to statute.  It was indicated by the Judge that the Tribunal was not presently minded to accept that the defence under section 41(1) of the Race Relations Act 1976 would apply to a United States statute as it would to a UK statute, but did not resolve that issue, leaving it open for further submissions.  It was to be argued, said the Respondents, that there might be a potential breach of the Official Secrets Act, that being UK legislation.  Recognising the importance of that to both parties, the Tribunal agreed to allow further submissions to be made.

7.	It was what happened on the occasion in September 2010 when those further submissions were made that gives rise to these appeals, but the stage within which the hearing occurred was set by what we have described.  What was in issue was whether the Respondent could make out a defence to what on the face of it was self‑evidently discriminatory conduct.

8.	What the Tribunal thought that Ms Akintola, who was not a representative in current professional practice and who appeared for the Claimant, had done during the course of the hearing was to make what it described as a concession that had the effect of pulling the rug from under the feet of the Claimant’s claims in at least some major respects.  At paragraph 4 the Tribunal said this:

“4. Surprisingly though before us Ms Akintola conceded that what Ms Cunningham…” [Counsel for the Respondent, who has appeared before us today as well to respond to the claim] “…described as the technical claim in relation to the ITAR issue, that is that even the application in good faith of ITAR amounted to a breach of the Race Relations Act (‘RRA’) because foreign legislation does not excuse discrimination on grounds of nationality, did not form part of the claimant’s claim, the claimant having said in her evidence that as a matter of principle if it was proved that she could not work on the project due to the application of ITAR she would accept that, although she could not accept ITAR being used as a cover.
5. As a result of the concession made on behalf of the claimant it has not been necessary for us to determine whether there is a defence available to the respondent under section 41 RRA or indeed under the Official Secrets Act.
6. Ms Akintola having made that concession we confirmed with her that the question for us to consider was whether ITAR had fairly been applied or if those regulations had been used as an excuse not to consider the claimant for the position of Project Manager, Military for which she had applied in December 2008 and that in rejecting her for that position the respondent had discriminated against the claimant on grounds of her nationality.  The respondent accepted that the reason the claimant had been rejected for the position of Project Manager, Military was her French nationality.”

The appeal
9.	The questions before this Tribunal on appeal were whether the Employment Tribunal, taking that approach as it did, having gone on to dismiss the Claimant’s claim, was in error of law.  It is said that in three respects it was: first, there had been no sufficiently clear concession or, we would prefer, abandonment of part of the Claimant’s claim to justify the Tribunal’s taking the view it did; secondly, that even if there had been such an abandonment, this was not one of those cases in which the Tribunal could ignore the evidence and the law otherwise applicable, and should nonetheless have continued to reach a conclusion in favour of the Claimant; and thirdly, the Tribunal was in error in determining at the end of its decision that the Claimant should pay costs to the Respondent.  That latter decision forms a separate head of appeal in many respects, and we shall consider it at the end of this Judgment.

10.	As to the first argument, Mr Chegwidden appears for the Claimant today; he perhaps, unlike Ms Akintola, has been able to articulate clearly the nature of the Claimant’s case.  Although the parties had geared up to arguing before us that we should determine as a fact whether a concession or abandonment was made of part of a claim, and to that end had originally filed affidavits, for reasons into which it is unnecessary to go the parties determined between themselves at the outset of this hearing that they would withdraw the affidavit evidence from our consideration; we have accordingly paid no weight to it, but we were invited to look at and examine the responses of the Tribunal Judge and members to the claim by the Claimant that she had not withdrawn any part of her case as the Tribunal said in paragraph 4.  We were invited to focus in particular upon notes made by one of the team of solicitors who were representing the Respondent.  There were three solicitors; one was then a trainee and is now the solicitor instructing Ms Cunningham.  Her notes became the focus of attention because of their clarity and apparent comprehensiveness, in so far as any note of oral evidence and submission can be complete.

11.	What we should say, however, is this.  A Tribunal will always want to take care where a litigant, particularly one who is self‑represented or who has a lay representative, seeks to concede a point or to abandon it.  It may be a matter of great significance.  Though it is always for the parties to shape their cases and for a Tribunal to rule upon the cases as put before it, and not as the Tribunal might think it would have been better expressed by either party, it must take the greatest of care to ensure that if a party during the course of a hearing seeks to abandon a central and important point that that is precisely what the individual wishes to do, that they understand the significance of what is being said, that there is clarity about it, and if they are unrepresented, that they understand some of the consequences that may flow.  As a matter of principle we consider that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous.

12.	In the present case for the Claimant to abandon a claim that the reliance upon ITAR and its after‑effects through the medium of the commercial agreements that the MLAs constituted was to abandon a case that would cause the Respondent considerable difficulty in meeting.  The Respondent would have to establish a permissible defence.  It would not matter how well intentioned the employer had been; it would not matter how understandable the alleged discrimination might be.  That is clearly established by Amnesty International v Ahmed [2009] ICR 1450.  In the present case the whole basis for the hearing in September 2010 was to determine whether there was a defence to what would otherwise be thought, on the Ahmed principles at least, to be discrimination.  That of course did not leave out the possibility that the Tribunal might be persuaded that reliance upon ITAR was no more than a fig leaf disguising real ill feeling against the Claimant on a personal basis that had nothing to do with regulation.  That is perhaps what she thought and maintained was the case.  It would form a coherent series of events together with her other claims, which had been dismissed by the Tribunal at the earlier stage of the hearing.  A finding upon that basis would have obvious repercussions for her personally, not least in terms of recovering self‑esteem, but also in terms of quantum when quantum came to be assessed.

13.	But the issue for us is whether in the course of a hearing to determine the issue of a defence the Claimant had effectively abandoned a principal plank of her case.  The Respondent sought to characterise the complaints that the Claimant was making as falling under either a technical head or a factual head.  Technical discrimination would be discrimination upon the basis that the Regulations left no space for the Respondent employer to do anything differently however much they may have wished to; the factual claim was effectively that the Respondent had discriminated against the Claimant because of ill feeling toward her based upon her nationality, race or sex.

14.	The Respondent plainly at the hearing saw events in the same light, as, it is plain, did the Employment Judge and the members of the Tribunal; that is, that the Claimant was abandoning the technical claim but not the factual claim.

The evidential material
15.	The trainee solicitor Ms Yates’ notes do not demonstrate to us that the Tribunal explored with the Claimant whether there had or had not been a withdrawal to ensure that was clear.  The relevant passages from the notes are these, in the cross‑examination by Ms Akintola of Mr Mahon.  She asked if he had given evidence that the Claimant had been refused a post on the grounds of nationality.  The answer: “Refused on ITAR - nationality”.  Question: “At no time did you mention reasons for refusing had anything to do with OSA [that being the Official Secrets Act] […].”  At this stage therefore in the afternoon of the second day it might be thought that the claim was still being pursued so far as the technical claim was concerned.  At the bottom of page 259:

“VA [Ms Akintola]:  Regardless of your obligations under ITAR - duty to amend MLA’s, aware under UK Law, does not give you a grounds to discriminate.”

16.	That is a clear proposition consistent with the technical claim.  Then this exchange occurred:

“VA:  Claimant is not opposed to ITAR per se - it is the discriminatory application by the Respondent.
Judge:  What mean by application of ITAR in a discriminatory manner?  As admitted by JM.
Problem is that ITAR, if complied, can only be applied in a discriminatory manner.
VA:  My point is ITAR - people from Claimant’s background not excluded.
Judge:  You’re saying because of amendment to ITAR - ITAR did not require claimant to be excluded.
VA:  Not accepting Respondent using ITAR as a cover to discriminate.
Judge:  My understanding - Claimant understood Respondent had to apply ITAR - her objections was if did so in an unfair manner.  Fig leaf.
VA:  That is not claimants case “ITAR does not allow you to discriminate against me”
Amended version
What happened against Claimant in 08 - does not allow discrimination against Claimant on grounds of nationality.”

17.	At page 262 in our bundle, the submissions of the parties were here being recorded.  Ms Cunningham began her submissions by saying that:

“Submissions start with requesting you decline to reopen technical complaint.  This has now been unequivocally abandoned.  What I describe as tech complaint, simplifying ITAR in good faith discrimination - abandoned by Claimant in XX.”

18.	We interpose to note that before us Ms Cunningham, though at one stage she had been inclined to make an argument that the Claimant in cross‑examination had abandoned her claim, does not seek to rely upon that exchange for that argument before us.  She continued:

“VA sought to bring back to life.  Cause of this reconvened hearing - as technical complaint complex.
Unequivocally abandoned sufficiently to prevent her from brining [sic] back to life.”

19.	She therefore was advancing a submission that relied upon an unequivocal abandonment, though it is fair to say that, as noted by Ms Yates, it appears to have been related to what had earlier been said in cross‑examination by the Claimant.  When Ms Akintola came to make her submissions she said:

“S41 defence clearly only applies to UK enactments only.  Doesn’t extend to US etc.
My strong submission - Respondent cannot rely on S41 defence - tribunal rightly noted in June no defence.
Respondent has no defence under S41 even if it was read to apply to ITAR - as it still discriminatory and applicable time ITAR did not require.
S278 RRA makes it clear emphasis - scope only covers UK/Scotland - ITAR not covered by S41/S78.
Respondent cannot attempt to force tribunal to adopt strained construction of S41, in fact of clear evidence that S41 does not reply [sic].”

20.	She referred to the indication then that the Tribunal had earlier given:

“Case of Claimant, no compelling evidence of Respondent to state S41 applies.
To make a point re what Respondent said today re Claimant not put evidence forward re nationality.  Should have been obvious in November that ITAR still remained a live matter up till today’s hearings.  […]
Clear evidence she still pursuing claim.
Second subs in August - clear evidence ITAR still being pursued, not abandoned.
Respondent had ample time to do research.
Judge:  Let me ask the question - if ITAR had not been amended, would we be here today?
VA:  Yes.
Judge:  Why?  You said pre‑amendment not concerned.
VA:  UK/EU Law.
Judge:  But you said no issue before amend.  So it follows if no amend, no issue?!
Still don’t know why you putting client’s case...” [it may be that the word ‘why’ should be ‘how’; that is certainly how it has been presented to us in submissions].
“…If your client had made an application for project manager military in 2006 - would she accept could not be employed if not amended?
VA:  Yes.
Judge:  So must follow, if regs had not been amended same would apply - as not amended.
VA:  Yes.
Judge:  Crux is amendment - yes.
Aspect of claim re amendment - has always been consistent in pursuing claim.  ITAR in amended form.
Respondent ought to have known still have and pursued to very end.
RRA - S3(1) makes clear inc’s nationality.”

21.	The exchange went on; later, Ms Akintola said:

“These submissions on part of Respondent are inescapable evidence of discrimination on grounds of nationality.  Amnesty International”

22.	That latter was plainly a reference to the Ahmed case.  There was then a break.  When Ms Akintola returned, her submissions are recorded in these terms:

“Sec of State had no defence to S41.
Respondent cannot rely on OSA - have heard evidence of JM [Mr Mahon], it is clear […] is alleged to be bound by OSA […].
It was purely a rejection on nationality grounds and nothing else.
Fact ITAR amended - by rejecting on grounds of nationality, acting without unlawful authority - so can’t rely on OSA.”

23.	Shortly after that she submitted, toward the end of her submissions as recorded, as follows:

“UK - direct discrimination - not permissible by any means - ignorance of the law no defence.
T should look at a wider spectrum - not just C, law nationally/internationally looks to exc. Discrimination.
We shouldn’t just do nothing, need to protect other employees.
Amnesty case.
P12, para 15 of written subs.  Final sub.
No justification defence.
Clear courts making it clear we are not to accept direct discrimination on any account.
Judge: Pg 2 of bundle, Para 2 - way Claimant puts ITAR complaint - used an excuse to block 2008 application.
As I understand it - the complaint you are now pursuing is the first complaint.
VA:  Claimant case is one of discrimination on account of nationality.
Judge:  Nothing to do with pre‑amend, its not application in good faith of ITAR, but they have used ITAR unfairly.
VA:  Yes, on nationality grounds.”

24.	That appears to be the end of the submissions.

25.	As to what is recorded, these observations are to be made.  The reference to the section 41 defence would only apply if what has been described as the technical claim was being considered; it would not otherwise make any logical sense.  If the claim that ITAR required discrimination and it was unlawful discrimination was to be maintained, then that would be subject to the ability of the Respondent to show that there was a defence within the statute.  That is where section 41 comes in.  It must therefore have been plain to a Tribunal that if this or something approaching these words was said, the Claimant was at this stage pursuing a claim that the words spoken to her in themselves amounted to discrimination that was unlawful if it could not be justified by the application of statute.

26.	It is plain from Ms Yates’ account that the Judge demonstrated he was unclear as to how Ms Akintola was putting the case.  There is some reflection of that in the notes themselves.  We have considerable sympathy with the Judge and the Tribunal, but the exchange as recorded falls short on any view of an unequivocal, clear and unambiguous abandonment of part of the case.  Ms Cunningham points out in her submissions, entirely correctly, that this is not the only material before us.  We would not be entitled, in our view, to come to any conclusion about the clarity or lack of clarity of the submissions and apparent abandonment of the claim before the Tribunal based upon Ms Yates’ material alone, given that there is other material to which we not only can but are obliged to refer.  The Tribunal Judge himself wrote in answer to an enquiry from this Tribunal at an earlier state to record the following:

“Having regard not least to the decision in the Amnesty International case, this [the ITAR point] was the aspect of her claims in relation to which the claimant was most likely to be successful.  It was very much to the Tribunal’s surprise therefore that in her submissions, and without being pressed to do so, Ms Akintola said that it was conceded that a fair application of ITAR would not constitute discrimination, the claimant having accepted in her evidence that if it was proved that she could not work on a project due to the application of ITAR she would accept that and that the claimant accepted that prior to the amendment to ITAR she could not be employed on those contracts.  It was the claimant’s case that following the amended [sic] to ITAR she could have been employed on those contracts and, as Ms Akintola said in her submissions, “the crux is in the amendment”.  It was the respondent’s case, which the tribunal accepted, that following ITAR being amended the claimant could not be employed on those contracts until the MLA’s had been amended and that process was still not completed.”

27.	He goes on to say as to her submissions that his notes record Ms Akintola as saying:

“The claimant accepts that she could not be employed due to ITAR prior to December 2006.  The crux is the amendment.  That claim was never abandoned, that is the claim relating to ITAR in its amended form.  […]  The claim relates to ITAR as amended and nothing else.”

28.	He commented that he remembered that particularly well because he recalled discussing with a colleague whether the Tribunal was bound to accept a concession that was so seemingly against the interests of the party on whose behalf the concession was made, his conclusion being that the Tribunal was so bound.  He added:

“It was on that basis and, having clarified with Ms Akintola as set out in paragraph 6 of our judgment the question that we were required to answer, that we have then proceeded to dismiss [the Claimant’s] claims.  As I have said, if that concession had not been made it is likely that we would have found for the claimant on that point.”

29.	The other two members of the Tribunal also thought that what had been said to the Tribunal was by way of concession that the technical claim did not form part of the Claimant’s claim.  Ms Johnson, one of those two, was able to produce her own notes.  They are less comprehensive than those of Ms Yates; the nearest they get to recording a clear abandonment of any claim is that:

“It was put to Mr Mahon in cross‑examination by Ms Akintola that the Claimant was not opposed to ITAR per se but to discrimination on the grounds of nationality.”  

30.	However, it confirms that when the Respondent made its submissions, Ms Cunningham was clear that the technical complaint had been abandoned; plainly that is what she thought too.  Ms Cunningham therefore argues upon the basis of that material that the Tribunal was not engaged here in its fact‑finding role.  The abandonment of the claim had been done orally and carefully confirmed.  The Employment Tribunal had been faced with fairly confused submissions from Ms Akintola, but it was for Mr Chegwidden, for the Claimant, to persuade this Tribunal that there had been anything improper in the approach of the Employment Tribunal or perverse in its conclusion.  The picture painted by the evidential materials to which we have referred was incomplete; other aspects were more telling.  She highlighted the degree of surprise caused to the Employment Tribunal; indeed, it began (paragraph 4) with the word “surprisingly”, because the approach of Ms Akintola appeared to demolish the whole issue that the Respondent had come to the Tribunal to argue about.

31.	She accepted, however, looking at the notes, that it would emerge that it was difficult to get a clear answer.  She argues that nonetheless we should conclude that there was sufficient clarity to meet the test that we have proposed.  When she began her submissions as she did, if there had been an objection to them, one might have expected Ms Akintola as representative immediately to leap to her feet to object.  It is inconceivable that the view of the Employment Judge and the lay members should coincide with her own express view as recorded if the basic facts were not so, and we should in this Tribunal remind ourselves, as we do, that we should be very careful in examining notes of evidence to a Tribunal, because it is all too easy to forget that the Tribunal, being there at the time that evidence is given or submissions are made, is best placed by far to determine what really is being said and what really is being meant.  The abandonment, she maintained, was or may be consistent with the way in which the issue on this point had first been put in each of two originating applications to the Tribunal.  The first in time described ITAR as “another invalid excuse to discriminate against me”, and the second in time claimed that, “with respect to ITAR, my status is identical to British nationals”.  We do not consider that the terms of either of those originating applications confines the claim to a claim in which it is irrelevant to take account of ITAR for the purposes of identifying discrimination.

Discussion
32.	It can be very difficult for a Tribunal faced with submissions made in an area of fact that can be expressed simply, as Mr Chegwidden has expressed it to us today, but which it is not easy without considerable skill to express with such simplicity.  A Tribunal may be faced with self‑represented persons or lay representatives who do not have that skill or lack it fully.  We recognise that in her submissions to us Ms Cunningham herself accepted that it might be difficult to get a clear answer at times from Ms Akintola as to precisely how the Claimant was putting her case.  However, we consider it important for a Tribunal to pause, and check and note with clarity and care what precisely is being said; all the more important if the features we have just identified are present, and all the more important still for a Tribunal faced with what might be described as a watershed or “Oh my gosh” moment.  This requires the lawyer’s precision with which we began this Judgment.  Words such as “fair” or “would accept” may be the words in which a Claimant may wish to express her views, but they do not directly answer a question such as the one in this case, which was whether there had or had not been unlawful discrimination.  However much it may be that an understanding of the position of the employer might render that discrimination “fair” in the eyes of some or “acceptable” in the eyes of others, the issue was whether there was a defence to a claim of unlawful discrimination, however well intentioned it might have been.

33.	As Mr Chegwidden submitted to us in reply, the test by which the Tribunal’s approach should be judged is not whether it did its honest best, but whether the material before it was enough for it to soundly reach the conclusion that there had been a clear, unambiguous and unequivocal concession or abandonment of part of the claim.  In situations in which a Tribunal faces the suggestion that that is what has happened, or thinks it might have done, it must take care to ensure that each of those three words is examined, and that the case put by the Claimant is properly understood; if necessary, having it reduced to paper and agreed as such by the advocate or Claimant at the time.

Conclusions
34.	It is sufficient for the purposes of this appeal to say that, having examined the evidential material, having taken into account the arguments by Ms Cunningham, we have nonetheless come to the conclusion that it is simply not possible to say on appeal, appreciating that we may by virtue of our position and limited material not have available to us the full force of the matters before the Tribunal in Birmingham, that Ms Akintola clearly, unambiguously and unequivocally abandoned part of her claim.  Just as it would be surprising for the Tribunal to have come to the conclusion it did without there being some basis for doing so, it would equally be surprising if the Claimant had abandoned her claim at that time, and the continued apparent promotion of the self same claim in submissions by Ms Akintola (without immediate objection, it has to be said, from Ms Cunningham) demonstrates that the situation was properly to be described as confused, and in those circumstances, given that the Claimant has thereafter maintained that this part of the claim was not abandoned or withdrawn, we consider that the appeal must be allowed.  The error of law was in the Tribunal not carefully adopting the approach that we have identified.

35.	It is unnecessary therefore for us to consider the second ground of appeal, which was that in any event the Tribunal here could not be excused by the concession or agreement of counsel from proceeding to determine the point at issue.  We say only this: that it is of course for a claimant to shape a case as the claimant would wish, and that a tribunal does not have to invent arguments for a claimant if they have not been put by that claimant.  The argument here, however, is to the effect that an Employment Tribunal can hive off, in effect, well‑intentioned discrimination, or at least discrimination forced upon it by others without its will, from malicious discrimination in the sense of deliberate discrimination upon the grounds of race in circumstances such as these.  We have not had to determine the point; we do not do so, but we can say we would have had some considerable hesitation in concluding that in these particular circumstances a Tribunal would have been able to disentangle the use of the words that described to the Claimant that she could not get the post in question because she was French in such a way as to avoid having to make a conclusion as to whether that was or was not discrimination.

36.	Finally, we come to the question of costs.  Given the agreement of counsel that if we were to allow the appeal upon the principal basis we have discussed, the award of costs would fall, we need say little about it, but issues of costs may well remain relevant for the Tribunal upon remission.  Therefore we should say this.  The Tribunal awarded £10,000 costs against the Claimant.  It did so, in summary, upon a number of bases, collectively: the first was that the Claimant had in effect brought claims upon which she could not succeed because they did no more than identify the fact that she happened to be black Afro‑Caribbean and French and others who succeeded in appointment were not; secondly, that the majority of her complaints were out of time; thirdly, that she had conducted herself in some unreasonable ways during the proceedings, including regrettable behaviour in respect of a confidential agreement; and fourthly, that she could have made the concession that the Tribunal thought to have been made at an earlier stage in the proceedings and thus avoided the costs of the two days needed for the further hearing.

37.	The first two of those grounds could not be supported by Ms Cunningham in her submissions.  In her fair submissions, typical of her responsible advocacy, she accepted that the Tribunal had itself in an earlier decision held that there was sufficient in the case to reverse the burden of proof on each of the allegations and, secondly, had itself held that the complaints were not out of time because they formed part of a series of similar events.  As to the final ground, as to the concession, we have dealt with that, but we should note that there remain issues, which it is not for us to determine, that are raised by the other aspects of the conduct of the Claimant; suffice it to say that the costs award as made cannot be sustained, but we cannot say that costs will not be an issue that it is legitimate for a Tribunal to return to.

Remedy
38.	In these circumstances we have been invited by both parties to remit the case.  We have no hesitation in doing so; there are aspects of the defence potentially available to the Respondent that require further investigation, and it is proper that that be done at a Tribunal level.  Although the Employment Judge expressed an indication of the way in which the Tribunal might have been minded to find, and Mr Chegwidden was for that reason reluctant to urge that we remit to the same Tribunal, Ms Cunningham for her part has in the end invited us to do just that.  That is an invitation that we accept, because we consider that considerable costs are likely to be saved by remitting the case to the same Tribunal, a Tribunal that in its decision has shown no lack of the careful and conscientious conduct that one would expect of Tribunals, having, as it appears to us, been placed in the difficulties it was by understandable difficulties of appreciating precisely what was being said and coming to a conclusion that was reached by an insufficient approach, as we have identified.  Accordingly we consider it entirely right that the same Tribunal should be seized of the remission if that remains administratively convenient.

Addendum
39.	We have considered counsel’s respective submissions on the scope of the remission, and we entirely approve; that will be attached to the order.

40.	Can I finally say that our thanks are particularly due to Mr Chegwidden, who appears pro bono though the National Pro Bono Scheme in the best traditions of the Bar.