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Kibirango v Barclays Bank Plc & Ors UKEAT/0234/14/JOJ
burns-barke procedure
Appeal against an ET decision dismissing the claimant's claim of race discrimination. Appeal allowed.
The claimant lost his claim of race discrimination at the ET. He appealed on the basis that the decision was inadequately reasoned.
The EAT allowed the appeal. The decision of the Tribunal was inadequately reasoned and did not inform the claimant properly why he had lost his case. The authorities do not support the proposition that it is sufficient for a Tribunal to state that it preferred the account of one witness to that of another, without saying why. The costs order against the claimant was also set aside.
Appeal No. UKEAT/0234/14/JOJ
Judgment handed down on 25 November 2015
THE HONOURABLE MR JUSTICE KERR
KIBIRANGO (APPELLANT)
1) BARCLAYS BANK PLC
2) CLARK
3) PERRY (RESPONDENTS)
MR ANDREW ALLEN (of Counsel)
Direct Public Access
MS LUCINDA HARRIS (of Counsel)
1 Churchill Place
E14 5HP
RACE DISCRIMINATION - Direct
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke
The Decision of the Tribunal was inadequately reasoned and did not inform the Appellant properly why he had lost his case. The authorities do not support the proposition that it is sufficient for a Tribunal to state that it preferred the account of one witness to that of another, without saying why.
1. This appeal has an unusual procedural history. It has been considered by four Judges of the Appeal Tribunal. As a result, the permitted grounds have been reduced to two: whether the Employment Tribunal gave inadequate reasons for preferring the evidence of the Second Respondent ("Mr Clark") to that of the Appellant ("Mr Kibirango"), in two defined areas.
2. I will omit as much of the detail as I can. Mr Kibirango describes himself a black African. He is a computer software consultant and business data analyst. I shall refer to the First Respondent as "the bank". The Third Respondent ("Mr Parry") was Mr Clark's line manager. They worked in the department of the bank dealing with "complaint information management"; specifically, the management of information about complaints of alleged mis-selling of payment protection insurance.
3. It is agreed that Mr Kibirango was one of a number of consultants who worked for the bank's complaint information management operation in the latter part of 2012. Another was Mr Ursell, a white man, who had worked for the bank since the previous year. He was regarded as the most senior consultant, and reported directly to Mr Clark. Another, who joined at the same time as Mr Kibirango, was Mr Ali, who is black.
4. It is agreed that on 2 October 2012, Mr Kibirango's appointment was summarily terminated by Mr Clark, about 11 weeks after Mr Kibirango had started work at the bank. The main issue in the subsequent Tribunal proceedings was whether Mr Kibirango's race played any part in the treatment he received. The Respondents said it did not: the termination resulted from Mr Clark's view that Mr Kibirango was performing poorly.
5. The Tribunal had before it emails in the latter part of September 2012 dealing with a missed deadline for production of a particular report. Mr Clark was off sick when the original deadline expired on 25 September 2012. When he returned from sickness absence on 27 September, the report had still not been finalised.
6. Mr Clark raised performance concerns with Mr Kibirango on 28 September 2012. Over the weekend of 29 and 30 September, Mr Kibirango, in turn, raised concerns about Mr Clark with Mr Parry, who referred him back to Mr Clark. Meetings then took place between Mr Kibirango and Mr Clark on 1 and 2 October 2012. The late report was still not finalised. Mr Clark discussed with his human resources department the possibility of replacing Mr Kibirango.
7. It is agreed that on 2 October 2012 at about 5pm, Mr Clark told Mr Kibirango his contract was at an end with immediate effect.
8. The Tribunal had before it an email sent just over an hour and a half later, at 18.42 on 2 October 2012. Mr Clark sent it to a human resources manager, Ms Halliwell, and to his line manager Mr Parry. It stated:
"I have terminated Charles's contract with immediate effect from 17:00 today. It's fair to say that he was not happy and got personal as a result which only leads me to believe I have absolutely made the right decision.
I will finalise the documentation around the events leading to this point and circulate accordingly."
9. On 5 October 2012, he circulated a long email setting out "finalisation of the minutes leading to Charles's exit from Barclays". That email was also before the Tribunal. In it, Mr Clark set out his account of what had happened. That account was later accepted by the Tribunal. In it, Mr Clark stated that Mr Kibirango's contract had been terminated because of concerns about his performance.
10. Mr Kibirango took some time to raise the issue of his race with the Respondents. In a long email of 25 October 2012 which was before the Tribunal, he complained to the bank in detail, giving his version of events. That account did not include any allegation of race discrimination. He said it had been a "humbling and humiliating experience", and went on to say he did not know why his employment had been terminated.
11. In the same paragraph he asked many questions about why his contract had been terminated, including "why me and not the Ridgian staff who wrote the software in the first place …". He concluded "please help me to find answers to my questions". These questions were phrased in such a way as to express scepticism about whether his dismissal was justified on the objective merits, and about whether the reasons given for it were the genuine, true and full reasons.
12. The above is a neutral account, omitting disputed matters, of materials before the Tribunal about events leading to the termination. Thereafter, Mr Kibirango bought a claim for race discrimination and harassment. The Respondents applied to strike out the claims on the ground that Mr Kibirango was not an employee of, or a contract worker for, the bank. Alternatively, the Respondents sought a deposit order.
13. A pre-hearing review took place on 17 April 2013 before Employment Judge Cocks. She refused to strike out the claim, being "not satisfied that the claim has no reasonable prospect of success". She considered that it had "little reasonable prospect of success" and therefore ordered Mr Kibirango to pay a deposit. He agreed that it should be the maximum of £1,000, and subsequently paid that sum.
14. The Judge gave Reasons for her conclusions. The Respondents then (for the purpose of this case only) abandoned their contention that Mr Kibirango was not an employee or contract worker. There was no appeal against either of Judge Cocks' two Decisions. They stand.
15. On 21 May 2013, Mr Kibirango produced a Scott Schedule setting out 12 numbered allegations of alleged direct race discrimination. In each case the chosen comparator was Mr Ursell. The allegations covered the period from 25 September to 5 October 2012.
16. When the matter came on for hearing before the Tribunal, there were witness statements from Mr Kibirango, Mr Clark and Mr Parry. Ms Harris, who represented the Respondents before me and below, recalled that those witness statements were, in substance, adopted by the respective witnesses, without any material alterations. Mr Kibirango's statement included (at paragraph 28) a passage saying that on being told he was being dismissed, he "pleaded with him [Mr Clark] and asked him not to make a rash decision, but he rejected my plea …".
17. Mr Clark's witness statement gave an account consistent with his email of 5 October 2012. It included (at paragraph 46) a passage saying that before the decision to terminate had been communicated, Mr Kibirango "stated that he found my behaviour 'childish'". In the next paragraph in the statement he said that, before communication of the termination decision, Mr Kibirango had said "I think that you are being argumentative Adrian because you just had a bereavement in your family".
18. Pausing there, it was common ground that Mr Clark had just suffered a bereavement and that this was mentioned at some point during the meeting. Mr Kibirango, in his email of 25 October 2012 (mentioned above), stated that after being told his contract was terminated, he "advised him [Mr Clark] not to make a rushed decision on a day when he had just lost a relative …".
19. In Mr Clark's email of 5 October 2012, he stated, consistently with what he later said in his witness statement, that after Mr Kibirango had at one point walked out of the meeting and been asked to return, the latter:
"… stated that he found my behaviour "Childish". I responded by saying that I found him to continue to divert the attention away from the issues I had raised with him since we first met the previous Friday. Charles then went on to say "I think that you are being argumentative Adrian because you just had a bereavement in your family". Not only did I find this extremely unprofessional and inappropriate but I was personally upset that he had decided to use something from my personal life in a business conversation which, he had no right to do. I advised Charles that I wasn't being argumentative I was simply stating facts …
At this point I advised Charles that I did not feel that things were working out for me as his line manager, or indeed for the team or Barlays, and I would not be asking him to return to the office tomorrow … I went onto say that I would be terminating his contract and that I would like him to clear his desk …"
20. There was therefore a conflict on the documents, before witness statements were exchanged, but which was apparently continued in the witness statements. The conflict was whether Mr Kibirango had referred to Mr Clark's bereavement shortly before, or shortly after being told that he was being dismissed by Mr Clark.
21. Mr Kibirango represented himself at the hearing. Ms Harris represented the Respondents. She explained that in the course of questioning Mr Clark, Mr Kibirango put to Mr Clark that he, Mr Kibirango, had made the comment about the bereavement after, and not before being told his contract was to be terminated. Mr Clark had responded that that was incorrect and that the reference to a bereavement had been made before, and not after the termination decision was communicated to Mr Kibirango.
22. Two further matters need to be mentioned at this point. First, Mr Kibirango had made no mention, at that stage, of using the word "childish" attributed to him by Mr Clark. In a later document (to which I shall come) he either denied using that word or gave the appearance of denying using it. However, he accepted before the Tribunal, on being asked questions, that he had used that word.
23. The second matter is that it is not disputed that earlier in the meeting, at or near the start of it, an uncontroversial reference to the same bereavement had been made by Mr Kibirango. He expressed his condolences and Mr Clark thanked him for that. Nothing turns on this but I mention it as background and to avoid any confusion.
24. Ms Harris explained that at the hearing before the Tribunal, the dispute between Mr Kibirango and Mr Clark as to the timing of the second, controversial, reference to Mr Clark's bereavement, and the timing of the use of the word "childish" (which, as I have said, he accepted having used) did not loom large or form a prominent part of the arguments.
25. In particular, Mr Kibirango did not refer Mr Clark to the email of 2 October 2012, sent at 18.42, and neither did the Tribunal. In that email, it will be recalled, Mr Clark had said: "[i]t's fair to say that he was not happy and got personal as a result which only leads me to believe I have absolutely made the right decision".
26. The Tribunal's Written Decision was signed on 6 February 2014 and sent to the parties the next day. The Reasons followed, signed on 19 February and sent to the parties on 20 February 2014. The Tribunal comprised Employment Judge Kearsley, sitting with Mr R Owen and Mr J Bennett.
27. In its Written Reasons, the Tribunal set out its findings of fact. They referred (at paragraph 3.1) to the delayed report which had originally been due by 25 September 2012. They then (at paragraph 3.2) "set out the timeline of subsequent emails". That was followed by an account of emails and email chains in the form of a bullet point timeline, spanning the period 25 to 28 September 2012.
28. There was then an account of evidence, to put it neutrally, of increasingly strained relations between Mr Kibirango on one side and, on the other side, Mr Clark and Mr Parry, continuing into the weekend on 29 and 30 September over the telephone. The Tribunal's account of email exchanges then continued, covering (at paragraph 3.8 onwards) exchanges on Monday 1 October and Tuesday 2 October, and a parallel account of the meetings held that day between Mr Clark and Mr Kibirango.
29. The extensive citation of email exchanges excluded any reference to Mr Clark's email sent at 18.42 on 2 October 2012. The Tribunal said they "accept as the most contemporaneous and accurate recollection the report prepared by Mr Clark on 5th October …". They then proceeded to set out an account of what had happened at the meeting three days earlier, founded on the contents of that email.
30. That included (at paragraph 3.13) the point that Mr Kibirango had told Mr Clark he found the latter's behaviour childish and had also made an inappropriate suggestion that a recent bereavement had influenced Mr Clark in his actions. The Tribunal went on to state that "[i]t was after those exchanges that Mr Clark advised the claimant that 'things were not working out'" and that his engagement was to be terminated."
31. After mentioning (at paragraph 3.17) Mr Kibirango's long email of 25 October, and the absence of any mention of his race in that email, the Tribunal stated at paragraph 3.18 that Mr Ali, another black consultant, had had his contract extended. The suggestion hat this might have been done to draw a deliberate contrast with the Respondents' treatment of Mr Kibirango was characterised as an argument which "does not bear examination because the claimant had made no reference to a discrimination claim at the point when Mr Ali's contract was extended".
32. Thus, the Tribunal dismissed Mr Kibirango's suggestion that "the respondent must have been aware that he, as a black individual who was unhappy with his treatment would allege discrimination". The Tribunal referred to that as a "striking example of the distorted perception which the claimant has when considering the motives of the respondent."
33. After referring to the applicable law, the Tribunal stated its "conclusions", starting at paragraph 14. It did so by reference to the numbered allegations 1-12 in the Scott Schedule, dealing with each (subject to one omission which is now immaterial: the findings in relation to allegation 3, it is now clear, also cover allegation 4).
34. Broadly, the findings were a rejection of Mr Kibirango's interpretation of the events arising from the late report, and an acceptance of Mr Clark's evidence (and that of Mr Parry) that the performance concerns about Mr Kibirango were genuine and nothing to do with his race.
35. On the issue as to the reason for the termination of Mr Kibirango's employment, the Tribunal said this:
"24. The tribunal accept the [sic] Mr Clark did not enter the meeting on the 2nd October with the settled intention of terminating the claimant's engagement, albeit he had taken advice that he was in a position so to do.
25. The tribunal accept as genuine the reasons which he gave in his summary to this tribunal, namely that the claimant had failed to provide information when requested, failed to provide deadlines when requested, was resistant to feedback, had approached Mr Parry without telling Mr Clark that he proposed to do so and, most significantly, had both called him childish and made an inappropriate reference to his recent bereavement whilst in the meeting.
26. Mr Clark was entitled to conclude that enough was enough. There is no evidence from which this tribunal could conclude that a hypothetical comparator would have been treated any differently. Mr Ursell was not a true comparator because he had not acted in the same way. Mr Clark acted with the approval of his superiors and was justified in so doing because he had made a professional judgment that the claimant could no longer be effectively managed and that conclusion was reinforced by the claimant's unprofessional behaviour at the meeting itself. A hypothetical comparator who had acted in similar fashion would have had the engagement terminated."
36. The Tribunal dismissed the claims, and went on to make an award of costs against Mr Kibirango of £15,000 (including the £1,000 deposit he had already paid).
37. Mr Kibirango, representing himself, appealed. Paragraphs 10 and 15(h) of his original grounds of appeal give the impression that he was denying having used the word "childish" and denying having made an "inappropriate reference" to the bereavement. However, one can also read those paragraphs as expressing his indignation at the contrast between the Tribunal's treatment of his evidence and that of Mr Clark, in support of a (now immaterial) contention that the Tribunal was biased.
38. The appeal came before Her Honour Judge Eady QC on the papers. She did not have the Scott Schedule which, unhelpfully, was not quoted in the Tribunal's Decision, nor annexed to it. She convened a Preliminary Hearing at which the Scott Schedule and Mr Kibirango's witness statement could be produced. That Preliminary Hearing came before the President, Langstaff P, on 7 November 2014.
39. Langstaff P set out the background facts as found by the Tribunal, including the finding that Mr Clark's account of the "childish" and "bereavement" remarks had been accepted. He stated (transcript paragraph 4) that the Claimant "denied it", though it has since become clear that Mr Kibirango had accepted during the Tribunal hearing having used the word "childish" and that in his email of 25 October 2012, far from denying the "bereavement" remark, he had said he had "advised him [Mr Clark] not to make a rushed decision on a day when he had just lost a relative …".
40. Langstaff P went onto consider the Tribunal's Decision, describing it as "not a model of its kind" (paragraph 10). Later, in paragraph 16, he said this:
"16. The Judgment delivered on 19 February 2014 by the Tribunal (Mr Kearsley, Mr Owen, Mr Bennett) did not deal in those terms, extracting the essence of the case, as Judge Cocks had done and as I have tried to do, but dealt with the facts in something of a staccato fashion. It is, however, plain from looking at those facts that it preferred the evidence given by Mr Clark and Mr Parry to that given by the Claimant. What has troubled me about that is that at no stage did it say why it thought that Mr Clark should be preferred in the evidence he gave. There were hints as to why that might be. Thus the Tribunal took the view (see paragraph 3.18) that the Claimant's perception of what had occurred was distorted. In my view, since in the way in which I have set out the essential issues of fact what was critical was the way in which Mr Clark approached the matter and what occurred at the meeting, which was a one-to-one meeting on October 2, it may be that an Appeal Tribunal would conclude that the Tribunal should have said more than it did."
41. The learned President went on to dismiss a number of grounds of appeal that are no longer material. After doing so, he referred at paragraph 33 to a possible error of law in:
"… the failure of the tribunal to set out the reasons why it preferred the evidence of Mr Clark to that of the Claimant in respect of the incidents from 25 September to 2 October … I think that the tribunal should be required to explain, by way of a Burns/Barke order, what its reasons were for reaching its conclusion as to preferring Mr Clark's evidence to that of the Claimant …"
42. In the President's order made on 7 November 2014, he directed that "[t]his appeal be dismissed, save only for those issues which arise from and in respect of the following questions:
"… What the reasons were for preferring the evidence of Mr Clark instead of the claimant …
The Employment Tribunal is requested to give its answers … by reference to its Notice of Evidence …"
43. In answer to that request, the Employment Judge sent a letter dated 23 January 2015 which, so far as material, read as follows. The Judge set out the first question as worded in the President's order. In answer, the Judge stated this:
"Question 1
The judges note records that under cross examination the claimant acknowledged that
(a) I told Mr Clark that his behaviour was childish
(b) I said to Mr Clark "you cannot make a decision when you have lost a member of your family"
The lay members recall the same exchange
It appears from paragraph 4 of the EAT transcript that at the appeal hearing the claimant denied making either remark and that that was a central dispute.
As this was no longer a disputed issue the tribunal felt under no obligation in its oral reasons to explain its conclusions other than to confirm that this exchange was recorded in the detailed note prepared by Mr Clark on 5 October 2013 [sic - 2012], 3 days after the meeting and that the tribunal had accepted that the note was accurate. Had the claimant persisted in a denial that he had made the comments alleged the tribunal would have explained how it had resolved the dispute. There was no dispute. Mr Clark gave evidence that it was at the point the claimant made his remarks that he concluded that he should terminate the engagement.
The tribunal does not feel it can go further, by reference to its own notes of evidence in providing an answer to the first question posed.
44. A number of observations need to be made about that answer.
45. First, the Tribunal had available to it not just the President's order but also the transcript of his Judgment; indeed they referred to paragraph 4 of it.
46. Secondly, the Tribunal plainly focused on the Claimant's apparent denial of having said Mr Clark's behaviour had been childish and of having made inappropriate reference to his recent bereavement. (I will refer hereafter to those remarks as the "personal remarks".) That was what the President dealt with in paragraph 4, to which the Tribunal made express reference.
47. Thirdly, the Tribunal did not refer in its answer to paragraph 33 of the President's Judgment. In that paragraph, the President referred to a possible error of law arising from "the failure of the Tribunal to set out the reasons why it preferred the evidence of Mr Clark to that of the claimant in respect of the incidents from 25 September to 2 October" [my emphasis].
48. Later in the same paragraph the President said the Tribunal should be asked to explain what its reasons were for reaching its conclusion as to preferring Mr Clark's evidence to that of the Claimant. It was clear that the President intended the answers to deal with the incidents from 25 September to 2 October (though his subsequent order did not make express reference to those incidents).
49. Fourthly, the President had referred (in paragraph 5 of his Judgment) to the Tribunal having accepted Mr Clark's evidence that the reasons for his decision to terminate Mr Kibirango's employment included "most seriously [that] he had made inappropriate remarks (as set out above)". That was a reference to the personal remarks and included the finding that they had preceded the dismissal and not been made after the dismissal.
50. As explained above, the issue as to the timing of the personal remarks was a live one before the Tribunal on the witness statements and in oral evidence. I shall refer to this issue as the "timing issue". When answering the Burns/Barke questions, the Tribunal did not fully deal with the timing issue. The question was interpreted as referring only to the non-issue (before the Tribunal) as to whether the personal remarks had been made at all. As the Judge pointed out, it was common ground before the Tribunal that they had been.
51. In relation to the timing issue, the Tribunal's only answer was: "Mr Clark gave evidence that it was at the point that the claimant made his remarks that he concluded that he should terminate the engagement". That evidence was obviously accepted; it reflected the Tribunal's finding of fact at paragraph 3.13 of its Decision that the personal remarks were made and that it was "after [my emphasis] those exchanges that Mr Clark advised the claimant that … his engagement was to be terminated".
52. So the Tribunal, in its Burns/Barke answers, repeated its preference to Mr Clark's evidence on the timing issue, but once again without saying why. The answers do not display any appreciation of the contradiction between that finding and Mr Kibirango's contrary account (in his email of 25 October 2012) that Mr Clark "told me to go and clear my desk … and not to come back again. I advised him not to make a rushed decision on a day when he had just lost a relative, but he accused me of trying to divert his attention onto other matters".
53. That, then, was the unhappy state of affairs when the matter came before Lewis J at a further Preliminary Hearing, to be followed immediately by the full appeal, if time permitted and permission were granted for that to take place. That hearing took place on 9 June 2015.
54. Lewis J had the benefit of Mr Kibirango's critique of the Burns/Barke answers. It was set out in a letter of 6 February 2015 which included his contention (italics in original) that:
"[t]he point in dispute was whether these comments were said by me after being told that my engagement was to be terminated or whether they were said before this decision had been made - and therefore could have formed part of Mr Clark's decision making process."
55. Mr Kibirango then made reference to Mr Clark's unmentioned email of 2 October 2012, which included the words "he was not happy and got personal as a result" [Mr Kibirango's underlining]. He then pointed out that the Tribunal's answers had attributed to him the words "you cannot make a decision when you have lost a member of your family" and, in effect, asked rhetorically what "decision" could be referred to if not the decision to dismiss.
56. Lewis J gave permission for the appeal to proceed on two points only. Unfortunately, time did not permit hearing of the full appeal the same day. At paragraph 16 of his Judgment, he identified that the ground of appeal "is that the tribunal has failed to give adequate reasons for accepting the evidence of Mr Clark in relation to allegations 2 to 11 in the Scott Schedule save for what was actually said in the meeting on 2 October".
57. The grounds of appeal were subsequently set out in a document prepared by Mr Allen, who by then represented Mr Kibirango, in the following form subsequently approved by Lewis J:
(1) that the Tribunal did not give adequate reasons for preferring the evidence of Mr Clark instead of Mr Kibirango in relation to matters occurring from 25 September 2012 up to the meeting of 2 October 2012 and forming the subject matter of the claim;
(2) that the Tribunal has not given adequate reasons for preferring the evidence of Mr Clark in relation to the timing of when Mr Kibirango said that Mr Clark's behaviour was childish and he should not take a decision because of his recent bereavement and, in particular, whether that was said before the decision to terminate (and so was capable, as the Tribunal found, of being a factor in the decision to dismiss) or after the decision to terminate.
58. So it falls to me to determine whether the Tribunal's reasons, including those set out in its Burns/Barke answers, on those two aspects of its Decision are adequate or not.
59. Mr Allen submitted that they were not. He listed 12 points (lettered a to l) which, he said, were issues on which there was a conflict of evidence between Mr Kibirango and Mr Clark. These corresponded to allegations 2 to 11 in the Scott Schedule. However, I think that four of them (lettered h, i, k and l) are outside the scope of the exercise permitted by Lewis J in this appeal; for they go to what was said at the meeting on 2 October 2012, or what happened thereafter.
60. Mr Allen made the following main points:
(1) That the Tribunal on several occasions stated that there was "no evidence" of Mr Kibirango's version of events, when in fact the Tribunal was rejecting, without explanation, evidence given by Mr Kibirango himself; most notably in paragraph 19 when rejecting evidence that the comparator, Mr Ursell, had committed an error; and in paragraph 20, rejecting Mr Kibirango's claim that Mr Clark had acted to protect Mr Ursell.
(2) The Tribunal's preference for Mr Clark's evidence does not meet even the minimum standard set in English v Emery Reimbold & Strick Limited [2002] 1 WLR 2409, that "it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon" (per Lord Phillips MR, Judgment of the court, at paragraph 19). Instead, the Tribunal merely dismissed Mr Kibirango's evidence as "no evidence".
(3) Even formulating the Tribunal's reasons duty at its lowest, the reasoning is inadequate on the following issues (which correspond to the surviving lettered points in Mr Allen's list):
(i) whether Mr Clark attempted to blame Mr Kibirango for the failure to meet the deadline of 25 September 2012
(ii) whether on 28 September 2012 Mr Kibirango was falsely accused of not taking necessary measures to ensure reports were correct;
(iii) whether on 28 September 2012 Mr Kibirango was blamed for poor quality data for which Mr Ursell was responsible;
(iv) whether on 28 September 2012 he was blamed for Mr Ursell's failure to produce a software coding standards document;
(v) whether on 28 September 2012 he was falsely accused of not applying a quick fix alteration;
(vi) whether on 28 September 2012 his offer to produce a document by reverse engineering was inappropriately spurned; and
(vii) whether Mr Clark sent an email on 1 October 2012 containing false allegations about Mr Kibirango.
(4) Further, the adequacy of the Tribunal's reasoning here did not meet the Tribunal's obligation to set out not just its "basic factual conclusions" but also "a statement of the reasons which had lead them to reach the conclusion which they do on those basic facts" (Meek v City of Birmingham District Council [1987] IRLR 250 per Bingham LJ at paragraph 8).
(5) To the extent that the standard set in Meek is stricter than that referred to in English v Emery, the former should be used in the Tribunal jurisdiction: per His Honour Judge Hand QC at paragraph 63 in Greenwood v NWF Retail Limited [2011] ICR 896 (when considering the former Rule 30(6) of the then Employment Tribunals Rules of Procedure 2004).
(6) The present Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is no less demanding: see Rule 62(1), providing that the Tribunal "shall give reasons for its decision on any disputed issue", which includes the duty under Rule 62(5) to state how the law has been applied to its findings of fact on the issues it has determined.
(7) It was insufficient simply to say that the Tribunal accepted Mr Clark's email of 5 October 2012 as "the most contemporaneous and accurate recollection" of the earlier events. Quite apart from the point that it was not the most contemporaneous account of those events (the email sent at 18:42 on 2 October was closer in time to the meeting earlier that afternoon and included probative words), to state that the email is accurate is merely to repeat the preference for Mr Clark's account contained in it, and does not say why that account is preferred.
(8) As regards to the timing issue, the same inadequacy of reasoning is found both in the Decision and the subsequent Burns/Barke answers. The Tribunal said nothing about evidence tending to contradict Mr Clark's account, contained in Mr Kibirango's witness statement, put to Mr Clark in cross examination, arguably supported by the words "got personal as a result" in the email of 2 October 2012 which the Tribunal overlooked, and supported also by the Tribunal's own note of evidence referred to in its Burns/Barke answer where it attributed to Mr Kibirango the words "you cannot make a decision [my emphasis] when you have lost a member of your family". The Tribunal does not explain what decision that could have referred to other than one to dismiss.
(9) Mr Allen accepted that the Tribunal could properly have found against Mr Kibirango on the timing issue; the point could have gone either way but the Tribunal provided inadequate reasons for its conclusion on the timing issue, which it merely restated without comment in its Burns/Barke answers.
(10) Nor could it be said that the point was unimportant: the Tribunal had described the making of the personal remarks as the most significant factor in Mr Clark's decision to dismiss: see paragraph 25 of the Decision. It went on to reason that Mr Clark "was entitled to conclude that enough was enough" (paragraph 26). It was that conclusion, informed by the earlier conclusion on the timing issue, which destroyed, in the Tribunal's view, the validity of the comparison between the treatment of Mr Kibirango and that of Mr Ursell. The Tribunal also decided that a "hypothetical comparator who had acted in similar fashion would have had the engagement terminated" (paragraph 26).
61. For the Respondents Ms Harris made the following main submissions:
(1) She reminded me that the President had ruled out any appeal on the basis that the Tribunal had failed to make adequate findings of fact in relation to the matters set out in the Scott Schedule. The only issue was whether its reasons for those findings of fact were adequate.
(2) The formulation of the "reasons" duty in Meek, at paragraph 8, does not specifically address the extent of any obligation to say why one witness' account is preferred to another's.
(3) Where the issue is a straightforward conflict of fact between two witness of fact, as distinct from a difference of opinion between two experts, and resolution of the issue "depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believed X rather than Y; indeed there may be nothing else to say"; per Henry LJ (giving the judgment of the court in Flannery v Halifax Estate Agents Limited [2000] 1 WLR 377, at 382A-B). Flannery was referred to without disapproval in English v Emery (at paragraphs 6 and 7 of the judgment of the court).
(4) The remarks of Judge Hand QC in Greenwood at paragraph 63 were obiter and put an unwarranted gloss on the Tribunal's obligation to give reasons. The context of the case was the duty under the then Rules to give a decision in a structured form. The ratio of the case was that failure to follow the ordained structure to the letter was not fatal provided there was substantial compliance with the obligation relating to structure. As I understood her submission, Ms Harris was saying that although the appeal was allowed on the basis of inadequacy of reasons, the Judge's remarks at paragraph 63 formed part of the discussion of the law and was not essential to the conclusion that the reasons were inadequate on the facts.
(5) In the present case, the Tribunal said enough in its Reasons at paragraph 3.12 and 3.13, by stating that it accepted that "as the most contemporaneous and accurate recollection" the facts sent out in Mr Clark's email dated of 5 October 2012. The Tribunal also went further and referred at paragraph 3.17 to the absence of any reference to race in Mr Kibirango's email of 25 October, which was less contemporaneous than was Mr Clark's 5 October email.
(6) As to the earlier events, it was sufficient for the Tribunal to set out what Mr Clark's performance concerns were in relation to Mr Kibirango, to note the absence of any evidence that they were related to his race, and to state (as the Tribunal did) that it accepted the genuineness of the concerns about his performance.
(7) In short, this was a straightforward case in which the claim lacked any merit, for want of any evidential basis for the contention that Mr Kibirango's dismissal was related to his race, or any basis for an inference to that effect to be drawn. The comparison with Mr Ursell was misconceived because there were no similar performance concerns about him. The reasons were "Meek compliant".
(8) Alternatively, Ms Harris relied on the proposition in her skeleton argument that "in any event, the decision is obviously right". In oral argument she clarified that this was a case, in her submission, where if there was a legal error by the Employment Tribunal there was no need to send the case back because "the error cannot have effected the result" and was therefore "immaterial and the result as lawful as if it had not been made" (per Laws LJ at paragraph 21(a) in Jafri v Lincoln College [2014] ICR 920).
62. I now come to my reasoning and conclusions in what is left of this appeal.
63. I start by reminding myself that one should not expect a Tribunal's Reasons to be a model of legal draftmanship. The words should not be subjected to detailed legal analysis on appeal. The Appeal Tribunal must be slow to criticise the manner in which a Tribunal expresses itself, and may not itself find any facts or substitute its view of what findings of fact should have been.
64. In short, the Appeal Tribunal is confined to examining whether the decision below was lawfully made. In the present context the essential point is, as Ms Harris submitted, that Mr Kibirango is entitled to know why he has lost. Provided the Tribunal's Reasons enable him to understand that, the reasons are sufficient.
65. That does not mean, however, that a Tribunal can fulfil its obligation to give adequate reasons for a finding of fact by saying it preferred the evidence of one witness over another on that issue, without saying any more than that. Henry LJ's judgment in Flannery is not authority for that proposition. He went on to say at 382C-D:
"… This is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword."
66. In Anya v University of Oxford [2001] ICR 847 CA, Sedley LJ said this at paragraphs 24 and 25, referring to the decision in Meek:
"… to the effect that tribunals are not required to do more than make findings of fact and answer a question of law. In the race relations field this principle does no more than beg the questions: what findings, what law? It is elsewhere, above all in King v Great Britain-China Centre [1992] ICR 516, that the answers lie. In Tchoula v Netto Foodstores Ltd (unreported) 6 March 1998 Morison J in the Employment Appeal Tribunal spelt out what this means in practice:
"A bald statement saying that X's evidence was preferred to Y's is, we think, both implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely that there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons."
25. To assert this is not to demand, as Mr Underhill sought to suggest it did, an infinite combing by the industrial tribunal through endless asserted facts or an over-nice appraisal of them. It is simply that it is the job of the tribunal of first instance not simply to set out the relevant evidential issues, as this industrial tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the tribunal needs to say why. But the single finding of the industrial tribunal in this case on Dr Roberts's honesty as a witness, while important, does not make the other issues otiose: on the contrary, it begs all the questions they pose. …"
67. With that in mind, the first issue in this appeal is whether the Tribunal gave adequate reasons for its findings of fact in relations to events from 25 September up to (but not including) the meeting on 2 October 2012. The second issue is whether the Tribunal gave adequate reasons for its finding in relation to the timing issue, that is to say, the finding that the personal remarks were made before and not after the dismissal.
68. In allegation 2, Mr Kibirango said Mr Clark had unjustly blamed him for the failure to meet the deadline of 25 September 2012 set for the report mentioned above. Mr Kibirango's case was set out in detail in paragraph 12 of his witness statement. He said that, while he had been brought in only on 25 September, the deadline day itself, others had been misled into believing that the missed deadline was his fault, while in truth the blame lay with Mr Ursell; who, however, was protected by manipulation of the email trail, done by Mr Parry, the Third Respondent.
69. The Tribunal dealt with that allegation at paragraph 18 stating that it was "factually incorrect. The Claimant was not blamed for failure to meet the 25 September deadline. He was not requested to engage in the process until that date". On its face, that reasoning does not address the Claimant's point that others were mislead into believing that he had been at fault earlier in the process, at a time when he was not involved but others wrongly thought he was.
70. However, the paucity of reasoning, while regrettable, is not material because in allegation 1, the Tribunal had rejected (with adequate reasons) the case that Mr Parry had manipulated the email trail. So the Tribunal's treatment of allegation 2 does not provide a basis for disturbing its decision.
71. In allegation 3, Mr Kibirango asserted that he had been falsely accused of not taking the necessary measures to ensure that the reports under production at the time were correctly prepared. His case was that Mr Ursell, and not he, was responsible for errors contained in a draft report he produced on 28 September 2012; yet the errors were laid at his door and Mr Ursell, who is white, was shielded from blame for them.
72. In paragraphs 12 and 13 of his witness statement, Mr Kibirango had made that case in some detail. His written evidence was that he had been referred to Mr Ursell as a person with the expertise necessary to provide certain statistics (referred to as the "MI requirement", MI denoting management information) for inclusion in the relevant report. His case was that Mr Ursell referred him to certain data, for which he, Mr Ursell was responsible, and which turned out to be faulty. This led to the inclusion of a caveat in the draft report. All this happened before 28 September 2012, according to Mr Kibirango's written evidence.
73. When on 28 September Mr Clark (working from home after returning from sick leave the previous day) had email and telephone contact with Mr Kibirango, Mr Clark blamed Mr Kibirango, according to the latter (see paragraphs 14-16 of his witness statement) for the defects which he, Mr Kibirango, laid at Mr Ursell's door (see paragraph 17). His account in his witness statement of this episode is detailed.
74. The Tribunal addresses allegation 3 at paragraph 19 of its Decision as follows:
"19. This is not factually correct. The claimant did submit a draft report which contained errors identified by Mr Fabrizio. The tribunal has no evidence that Mr Ursell committed a similar error. Mr Ursell was working with poor data that he had not been responsible for producing."
75. This is wholly inadequate reasoning. The Tribunal had detailed evidence from Mr Kibirango that Mr Ursell was responsible for errors for which Mr Clark held Mr Kibirango responsible. The Tribunal, in its cursory exoneration of Mr Ursell, wholly failed to address the contrary case advanced by Mr Kibirango and, despite the detailed passages in his witness statement I have just mentioned, said it had "no evidence" that Mr Ursell had committed an error similar to Mr Kibirango's.
76. The inadequacy in the Tribunal's reasoning when dealing with allegation 3 is material. It is not cured by the fact that the Tribunal had previously set out the timeline of emails leading up to the conversations between Mr Kibirango and Mr Clark on 28 September.
77. The same inadequacy of reasoning afflicts allegation 4, which (as the Tribunal clarified after issuing its original Decision), is covered by the same reasoning as allegation 3 (though due to a typing error reference to allegation 4 was omitted from the original Decision). Allegation 4 is, indeed, very similar to allegation 3 and covers the same factual ground.
78. Allegation 5 related to a document referred to as the "software coding standards document". Mr Kibirango's case was that he was blamed by Mr Clark on 28 September 2012 for "not having applied Mr Ursell's coding standards over the previous week" (paragraph 16 of his witness statement). Earlier in the same paragraph, Mr Kibirango gave evidence that a week previously, Mr Clark had asked Mr Ursell to provide the team, including Mr Kibirango with:
"written documentation of the coding standards that we needed to apply to our software before it could be copied into the Live environment to automate the MI reporting. Mr Ursell did not produce the standards document that was required of him, and I had to remind him about it during a team meeting hosted by Mr Clark that morning, Friday 28th September."
79. The Tribunal's Decision addresses this allegation compendiously, together with allegations 6 and 7. Allegation 6 was that on the same day, 28 September 2012, Mr Clark accused Mr Kibirango of not applying a "quick fix alteration" to a report called the MI statistics report. His case was that he had in fact performed that task as requested, but Mr Clark falsely reported to higher management that he had not performed the task, in order to protect Mr Ursell who was the author of the "quick fix alteration", which Mr Clark knew to be in a poor state.
80. Mr Kibirango, in his witness statement, addressed this in paragraphs 18(e) and 19. His evidence included the contention that Mr Clark complained that he had not applied the quick fix alteration, and attempted to prevent him from scrutinising the faulty source data provided by Mr Ursell which, Mr Kibirango alleged, was the reason why the quick fix alteration was not effective. Mr Kibirango said in his witness statement that he relied on this as less favourable treatment than was meted out to his white colleague Mr Ursell, on the ground of Mr Kibirango's race.
81. Allegation 7 related to an alleged offer from Mr Kibirango to produce a required document by "reverse engineering" from certain software. He said that the need to do so by that method was a consequence of an earlier failure on the part either of the original developer of the software (who had left) or Mr Ursell, the developer's team leader, to produce the document. Mr Kibirango's case was that Mr Clark complained that the offer had been made, and inappropriately spurned it.
82. This point was fully covered in paragraph 20 of Mr Kibirango's witness statement. In that paragraph, he went on to explain that instead of gratitude for his goodwill gesture, he received a rebuke and subsequent complaint; whereas no such unwarranted complaint was ever made about the work of Mr Ursell, his white comparator.
83. The Tribunal dealt with allegations 5, 6 and 7 at paragraph 20 of its Decision. It said that:
"20. The tribunal accept that the concerns expressed by Mr Clark on 28th September, 1st October and 2nd October, were genuine concerns based on his professional assessment of the work created by the claimant. He was entitled to voice those concerns. There is no evidence to support the claimant's assertion that he acted this way to protect Mr Ursell or that he had any similar concerns regarding Mr Ursell's work. There is no evidence from which the tribunal could conclude that Mr Clark was influenced in his actions by the claimant's race."
84. The difficulty with that reasoning is that it nowhere addresses the contention of Mr Kibirango that Mr Ursell's work was worthy of criticism but was not met with criticism; that Mr Kibirango's work was met with criticism for faults that, objectively, were Mr Ursell's; and that, there being no race neutral explanation for that differential treatment, the Tribunal was bound to decide that direct discrimination on the ground of race had occurred (see section 136 of the 2010 Act).
85. The Tribunal's statement that there is "no evidence" to support Mr Kibirango's assertion that Mr Clark acted in such a way as to protect Mr Ursell, must mean that Mr Kibirango's evidence on that very issue was rejected. But the Tribunal did not say why it was rejected, apart from stating (i) that it accepted Mr Clark's concerns about Mr Kibirango's performance were genuine and (ii) that it accepted Mr Clark had no similar concerns about Mr Ursell's work.
86. The Tribunal needed to tell Mr Kibirango, to make him understand why he had lost, why it rejected his objective criticism of Mr Ursell's work. It also had to examine whether the professed genuineness of Mr Clark's concerns about Mr Kibirango's performance had any objective foundation. If it did not, an inference of race-related less favourable treatment would arise.
87. The Tribunal did neither of these things. That inadequacy of reasoning was material. Mr Allen is therefore right to submit that the findings of fact in relation to allegations 5, 6 and 7 are not supported by adequate reasons.
88. In allegation 8, Mr Kibirango asserted that on 1 October 2012 Mr Clark sent an email to Ms Halliwell and Mr Parry, recording allegations of poor performance by Mr Kibirango that were false and deflected attention from the failings of Mr Ursell. The email was in fact addressed to Mr Kibirango himself but was copied to Mr Parry and Ms Halliwell.
89. Mr Kibirango dealt with that email at paragraph 25 of his witness statement. He said that it contained misstatements that were intended to discredit him, to get rid of him. He added that no such "malign reports" were made about Mr Ursell, even though Mr Clark knew him to be responsible for flawed data. In paragraph 25, Mr Kibirango asserted that the sending of the email constituted less favourable treatment than given to his white colleague Mr Ursell, in breach of section 13(1) of the 2012 Act.
90. At paragraph 3.9 of its Decision, the Tribunal recounted the meeting earlier on 1 October 2012 at which Mr Clark raised concerns similar to those subsequently set out his email sent later that day. The Tribunal went on at 3.10 to recount the sending of the email. Later, in paragraph 21, it dealt with allegation eight in the following way:
"The email setting out the concerns did not contain false concerns for the reasons identified above. Mr Clark was entitled to share those concerns with his superiors. He was not influence [sic] by the claimant's race."
91. The "reasons identified above" are mainly those I have already identified as inadequate to meet the Tribunal's obligation. The Tribunal was repeating its acceptance of Mr Clark's evidence that he genuinely believed his performance concerns about Mr Kibirango were well founded. The Tribunal did not address Mr Kibirango's contrary evidence nor did say why it accepted that Mr Clark's concerns were well founded. The error was material.
92. Thus, in relation to the events from 25 September to 2 October 2012, up to (but not including) the meeting that day, the Tribunal failed to state its reasons for rejecting the case advanced by Mr Kibirango, which put bluntly was to the effect that Mr Clark scapegoated the black man for the faults of the white man and protected the white man by scapegoating the black man. It was not sufficient to dismiss his case by reference to his "distorted perception".
93. That brings me to the treatment by the Tribunal of the timing issue in relation to the making of the personal remarks. I have set out above the parties' respective cases in relation to that issue, and the evidence that was available to the Tribunal for and against the proposition that the personal remarks were made before or, as the case may be, after the decision to dismiss had been communicated by Mr Clark to Mr Kibirango.
94. I have already quoted in full, above, paragraphs 25 and 26 of the Tribunal's Decision where it addressed the allegation of direct discrimination, which was rightly described as "the principal allegation of direct discrimination" (at paragraph 23). Were the Tribunal's reasons adequate on this issue?
95. In my judgment they were not, for the following reasons.
96. First, the context in which they approached the timing issue was a deficient paucity of reasons to support the prior findings about events leading up to the 2 October 2012 meeting. The Tribunal's statement that it accepted Mr Clark's account set out in his long email of 5 October 2012, is not an answer to that deficiency.
97. The description of that email as "the most contemporaneous" account did at least say something about its quality, though the description was not accurate in view of the earlier email of 2 October 2012 which went unmentioned. The description of the 5 October email's contents as "the most … accurate recollection" of what occurred at the meeting, including in relation to the timing issue, is, as Mr Allen rightly submits, tautologous in that it merely reiterates the statement that Mr Clark's account is accepted, without saying why.
98. The Tribunal's Burns/Barke answer does not directly address the timing issue; indeed it fails to recognise that the timing issue even arose. The only statement made by the Tribunal in its Burns/Barke answer on the timing issue was to say in the last sentence that Mr Clark "gave evidence that it was at the point the claimant made his remarks that he concluded that he should terminate the engagement". That is a reiteration of what Mr Clark's evidence was on the timing issue, coupled with (implicitly, though not explicitly) acceptance of that evidence, but again without saying why it was accepted.
99. In its Burns/Barke answers, therefore, the Tribunal was either unaware that the timing issue arose and was significant or, if aware that it arose and was significant, failed to deal with it properly.
100. Indeed, again as Mr Allen submitted (echoing Mr Kibirango's letter of 6 February 2015), the attribution to him of the words "you cannot make a decision when you have lost a member of your family", coupled with implicit acceptance that those words were said before and not after the dismissal, leave unclear "what decision" the Tribunal thought was being referred to by Mr Kibirango.
101. Nor, either in its main Decision or in its Burns/Barke answer, did the Tribunal address the point that Mr Clark's email of 2 October 2012 had stated that Mr Kibirango "got personal as a result", that is to say as a result of hearing that his contract had been terminated.
102. I am not saying that the Tribunal was obliged to mention that email. It could have given adequate reasons for its preference for Mr Clark's account on the timing issue without referring to it. However, I would have expected most Tribunals to have referred to it and, indeed, to have asked Mr Clark about it during his oral evidence given that Mr Kibirango was unrepresented and Ms Harris, understandably, did not ask Mr Clark about it.
103. The omission to mention it is surprising because it was more contemporaneous than the later email of 5 October described by the Tribunal as the "most contemporaneous" account of the meeting in which the personal remarks were made, giving rise to the timing issue. The Tribunal's omission to mention that email is a factor that I weigh in the scales which contributes to (but does not itself entail) the conclusion that the reasons support the Tribunal's finding on the timing issue was inadequate.
104. It remains to consider the significance of the Tribunal's finding on the timing issue. In my judgment, it was of major importance because the Tribunal at paragraph 25 of its Decision had identified the making of the personal remarks as the most significant reason for the termination of Mr Kibirango's contract. The Tribunal's preference for Mr Clark's account informed its conclusion at paragraph 26 that he was entitled to say "enough was enough". That, in turn, destroyed Mr Kibirango's hope of establishing Mr Ursell as a valid comparator in the same material circumstances: Mr Ursell was not said to have made any such personal remarks.
105. I conclude that the inadequacies in the Tribunal's reasons which I have indentified above constituted a material error of law. It would not be appropriate to make a second request to the Tribunal for further clarifications of its reasons, using the Burns/Barke procedure.
106. The Tribunal's preference for Mr Clark's account over Mr Kibirango's barely amounts to more than "[a] bald statement that X's evidence was preferred to Y's" which is "… unreasoned and therefore unacceptable" (per Morison P in Tchoula v Netto Foodstores Limited (cited above)). Nor would it be right for this Appeal Tribunal to conclude that the Tribunal below must have considered the relevant facts and matters not discussed in the judgment appealed against: cf Greenwood v NWF Retail Limited (cited above) per Judge Hand QC at paragraph 71.
107. With regret, I am driven to the conclusion that the Tribunal's reasons do not measure up to the standard either of Meek (paragraph 8) or English v Emery (paragraph 19). Adequate reasons are an important aspect of the fairness of the trial because inadequate ones make it impossible to be satisfied that the Tribunal has properly performed the duty to try the case fairly to all the parties.
108. It is no answer to submit, as Ms Harris does, that this is a case falling within limb (a) of Laws LJ's formulation in Jafri (cited above) at paragraph 21, where "the error cannot have affected the result …". Indeed, there is an unappealed judicial decision to the contrary effect, namely that of Employment Judge Cocks who, while finding that the claims stood little prospect of success, rejected the proposition that they had no reasonable prospect of success. Whether the defective reasoning made a difference to the result cannot be determined until there has been a fair trial of the merits of Mr Kibirango's claim.
109. I also have concerns about other aspects of the Tribunal's treatment of Mr Kibirango's evidence. The use of the expression "no evidence" to describe what must have been the rejection of his evidence, was controversial.
110. So was the comment that he had a "distorted perception", which the Tribunal supported by the observation that he had not raised the issue of race with the Respondents before they extended the contract of Mr Ali, who is black.
111. The assessment of factual material is always a matter for the Tribunal below and it is not permissible for this Appeal Tribunal to interfere in the absence of any error of law. However, a Tribunal should exercise caution when considering how much weight to attach to the absence of or timing of any mention of race in the narrative history.
112. A person who mentions race early in the history, without overt reference to it having been made (as it rarely is), is open to the accusation of raising a race issue without evidence to support it, and thus is exposed to damage to his or her credibility as a witness. Here, Mr Kibirango would have been open to that accusation if he had mentioned race as an issue earlier than he did. On the other hand, his omission to do so was held against him. Employees contemplating a discrimination claim often face this unenviable dilemma.
113. Another Tribunal might have found his silence on the subject of race more eloquent as an indication of its relevance than if he had cried it from the rooftops. The account given in his email of 25 October 2012, part of which is quoted above, asked many questions about the explanations advanced by the Respondents, which, of course, were unconnected with Mr Kibirango's race. Some Tribunals might regard as naive the suggestion that an unspoken consciousness of race as a possible issue is not normally in the mind of employer and employee alike in a situation such as this.
114. Ms Harris invited me to remit the case back to the same Tribunal if the appeal succeeded. Mr Allen opposed that course and suggested the case should be remitted for rehearing before a freshly constituted Tribunal. I have had regard, in the usual way, to the factors set out in Burton P's helpful guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, at paragraph 46.
115. Here, the Tribunal has already stated that Mr Kibirango has a distorted perception when considering the motives of the Respondent. It has been asked to return to the case twice, once when asked to reconsider its decision and a second time when asked to answer the Burns/Barke questions. That has not produced clear reasons to support the findings of fact made. It seems to me appropriate that a fresh Tribunal should now consider the matter. I reach that conclusion with regret because of the additional cost to the parties and delay which will result; but, reluctantly, I see no alternative.
116. The parties are agreed that the Third Respondent, Mr Parry, can no longer be required to take part in the proceedings. The grounds of the claim against him have been rejected and are not capable of being resurrected by the result of this appeal. The case will be remitted for a fresh Tribunal to consider Mr Kibirango's claims as against the First and Second Respondents, as set out in allegations 3-11 in the Scott Schedule. I do not think it is appropriate or realistic to tie the hands of the fresh Tribunal by attempting to impose limitations on its fact-finding powers in relation to what was said at the meetings of 1 and 2 October 2012.
117. It follows that the costs order against Mr Kibirango must also be set aside, along with the main Decision. The deposit order in the sum of £1,000 remains in place. Mr Kibirango's risk of exposure to a further costs order, should he proceed with his claim, therefore also remains. The undisturbed decision of Employment Judge Cocks is that his claims have little reasonable prospect of success.
118. I heard submissions from the parties' counsel in relation to the appeal fees that were paid in the sum of £1,600. After the hearing, Mr Allen informed me that he had been told that £400 of that had been remitted to Mr Kibirango, which was not appreciated at the time of the hearing. The costs claim is therefore now limited to £1,200 and not £1,600 as argued at the hearing.
119. Ms Harris submitted that the appeal has diminished in scope and many of the proposed grounds have been disallowed. She invites me to reduce or eliminate any award of costs in consequence. Mr Allen countered that the second tranche fee of £1,200 became payable in full, and was paid, in consequence of the decision to allow the appeal to proceed to a Full Hearing, albeit on limited grounds.
120. I have considered these rival contentions and have come to the conclusion that (in the exercise of my power under Rule 34A(2A) of EAT Rules of Procedure) I should award Mr Kibirango the full amount of fees paid in respect of this appeal, less the £400 remitted to him. He has been, in substance, successful and could not have avoided any part of the fees that he has had to pay by reducing the scope of his grounds of appeal to what they eventually became. I will order that the First Respondent, the bank, must pay Mr Kibirango the fees of £1,200 which he has incurred.
121. Finally, I conclude by expressing my thanks to the legal representatives and by expressing the hope that the parties will seriously consider mediation as an alternative to renewed conflict before a fresh Tribunal. All three remaining parties (Mr Parry not being one any longer) have strong incentives to avoid a full rehearing, and face serious risks and burdens if one takes place.


text:
The top 1 percent by profession
Notice anything funny about the trends? Source: tax data (complete tables at the link; what I display below is truncated). Click for larger versions.
Here is the share of national income by profession.
More interesting would be the top .1 percent, because secular growth in financier representation would be even more apparent.
Here are two more just for fun.
Labels: american society, finance, gilded age, income inequality
This is what people don't get. Its not being in the top 1% that it is the problem, its how people are getting there. I don't think anyone begrudges true innovators or captains of industry. But they know finance, law, and most CEOs have basically just been working the system and getting in cozy with government over the last few decades.
What's sad is that people getting in the top 1% doing finance could probably do so some other more productive way too, but it would be harder and involve more risk so they take the easy way if we make it available. Whether or not to sell out to the street is a decision a lot of top Ivy kids talk about. They don't necessarily want to, but they are also competitive and want to be winners so they will do what it takes, even if its not good for society, if we let them.
Instead of just blanket taxing anyone who happens to be successful we should focus on these industries that have grown out of proportion and try to pass laws and targeted taxes to bring them in line.
relevant to this post is probably my thread on "alpha" in the last post
Interesting that sports and entertainment isn't bigger. Not enough of them? Or do they get thrown into other categories?
MtMoru said...
"Not enough of them?"
Duh. Or both. Ticket sales, lunch pails, jerseys, and pimping for some business which shouldn't exist at all like McDonald's adds up to almost nothing, and the externalities are huge.
The lawyers are going to cluster at the bottom unless they're doing very big lawsuits. What's a partner in Big Law make? A lot less than a partner at Goldman Sachs. Isn't that right?
Billyjoe said...
This is why finance is such a large percentage of the wealthy, because the value of financial assets has exploded since 1980. As wealth increases, and savings increases, financial assets grow. It's why people can retire, for instance. Before, most people died on the job, leaving their family with no savings. That doesn't happen as often these days. And all of this savings must be managed, hence big salaries for the guys closest to the cash register. This is what happens when you get wealthy. It's a good thing.
http://images.flatworldknowledge.com/wright/wright-fig02_006.jpg
For instance, take an LBO firm like KKR, usually considered the most parasitical of financiers. They take a lumpy income stream (the earnings of an auto supplier, for instance) and split it into debt and equity. The retirees buy the debt for income and the youngsters buy the equity to get rich. It's why retirees can live on dividends and interest income instead of investing in a nephew's gas station.
Finance: it's getting bigger because we're getting richer!
Be interesting to see some international stats so that we could tell if this was just U.S. comparative advantage.
Guy_Brodude said...
$10m is more or less the theoretical max. compensation for a BigLaw partner. The practical max. at most firms is probably closer to $3m. Average is probably in the neighborhood of $1m (give or take $400k). It depends on how you define "BigLaw," obviously.
Of course, the MDs clearing $3m could probably fit on one side of a sheet of loose-leaf paper. How the mighty have fallen. For what it's worth, the general mantra in both fields is that the "glory days" are very much in the past.
Maciano Van der Laan said...
What these graphs show makes me feel naive. How often have I believed the Reason/Cato kind of smart blog posts in which they kept telling everyone that the rich are taxed the most. These people are bought and paid for, tools for the rich.
There's no reason that both can't be true - Reason/Cato are bought and paid for *and* the rich are taxed the most.
Yeah, but that's exactly it, isn't it? These journalism outfits frame the truth in such a way that there's no downside, they only tell you that big corporations and 1%ers are taxed a lot. That's not lying, but it's not telling the truth either. They'll never tell you that the resultante of forces, which swings into play because of laissez-faire policies, enriches only the financial sector, while it creates tremendous risks that could harm everyone else. The high taxes are a burden the rich can handle, it's sort of necessary cost (government buy-off) for an even bigger profit. It's hard to see what libertarians get out of this.. is the legalization of marijuana really that important to them?
Now I know that they'd tell me that this isn't really capitalism -- "we said, let the banks go bankrupt! That's real capitalism." -- but corporatism. However, denying the inevitability of (mild) corporatism is a mental sickness only found in people under 30, too little life experience. We all know, we'll always have government and we'll always have big business; they will always meet up one day. It is almost impossible to prevent the rich from using their wealth to becoming even more wealthy and thus creating more corporatism. This is what happened in the financial sector. It's not just a few 'evil' ones like Goldman Sachs either, it's systemic. It's worldwide and we all know it.
These things can hardly be changed, but they can be put to the public view. Let the masses know who made their life difficult and who's helping them. I say
Mmm, but do we know that the influence-purchasing rich make the lives of the masses difficult? I think one problem with exposing the truth to the public is that the academy has failed to produce a decent theory of economics so we don't really know what to tell them. If we are in a recession is it a good idea or a bad idea to raise taxes on the rich?
"Mmm, but do we know that the influence-purchasing rich make the lives of the masses difficult?"
Well, I take it you must not think of obvious observations such as lobbying efforts or corporate lawyers?
I also know there are a whole lot of (especially young) people in Southern Europe and the US who have a hard time finding jobs (let alone fitting ones), because these economies are in a lot of trouble. They are in a lot of trouble because of high government debt and over-leveraged firms; banks sure pushed this model when the times were good.
If by 'good and bad' you mean pragmatic terms -- not lefty moral ones -- I have to say I'm in doubt. The current system led to high influence of the financial sector; this is something which undermined our economies while it benefited the management of these top companies. It's also true that socialism and/or anti-rich revanchist taxation don't make an economy, or a weak one, grow again. OTOH, in the 70s taxes were a lot higher in the Western world, things didn't go very good back then but stagflation wasn't as big a bug as the current great recession. But then again, in the 70s the work force was a lot different than that of today.
As I wrote, these things can hardly be changed. I'd like to see more Madoffs being named. Most of these top bankers can't be convicted technically -- it wasn't illegal to over-leverage or trade CDS's -- but it would be nice to have these people defend their actions. I'm sick of anonymous misnomers such as 'banksters' or 1%ers, let's name names and let's judge their actions. Make them feel some shame for what they did.
I know of no such thing as banks pushing for larger government debt - always the contrary. But all else you say I agree with 100%. I especially agree, and I feel anger, that more individuals are not held to blame - more individuals not prosecuted. I feel shame that what was done in the last bubble (and all the preceding ones too) was not a crime ... that people like Chris Dodd authored so-called bank reform after having personally been on the take for years and left us with a half-trillion dollar bill for bailing out fannie and freddie.
However, I also think that a whole lot of (especially young) people in the Southern Europe and the US have made no effort to accumulate skills to make themselves productive in a global economy. Why does the U.S. grant college tuition aid to people who want to study sociology, history, Spanish, English lit, etc ...? These degrees are great, but they are indulgences - like treating oneself to a good seat at a ball game, or reading that great novel. The taxpayer should not be funding Americans to study Shakespeare and then importing aliens with CS degrees on H1's to actually do the paying jobs. The masses need to know this too. Why should we forgive college loans that people too out not to get jobs, but just to enjoy themselves for four years?
All these are themes of individual responsibility.
I do love Buffet's suggestion that no member of congress be allowed to stand for re-election while unemployment, or the deficit, etc... is over some threshold.
What western economies really seem to demand is crushingly stupid communications and entertainment. What studies prepare people for success in those fields? Does it matter?
Bryan Duerk said...
Anyone else notice that non-financial executives share of occupation declined while their share of income went up. In fact, that concentration per person was more pronounced than the financial occupations.
Incentives lead most people to concentrate money to themselves. What has changed is the relative opportunity to capture more wealth by these top executives, financiers, and lawyers.
(BTW, the layers have a bigger growth in wealth compared to growth in percentage of the top 1% -- take that as you may).
Even "stupid communications and entertainment" create a big demand for college graduates with STEM degrees (pixar, facebook, disney?). As any kid who spends 1/2 hour in the career development room of a local high school can learn, the correlation between more remunerative employment and getting a STEM degree is nearly 100%. It matters.
Lauraine lee said...
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Sam H said...
Here;s a really cool NYT map of the top 1%'s jobs: http://www.nytimes.com/packages/html/newsgraphics/2012/0115-one-percent-occupations/index.html?ref=business
Festival della Scienza Genova and Italy: final tho...
Steve Jobs, intuition, and genius
The illusion of skill
Festival della Scienza Genova: videos and photos
Foto di Genova 2
Foto di Genova
IQ malleability
Tall and good looking
Ideograms, alphabets and civilizations
Is the Left right?
To the Barricades!
Links 10.14.2011
Genova Science Festival
Hurray for the little guy
So long, Steve
Fast evolution in Quebec
Hollowing out
On the origin of probability in quantum mechanics
Startup-ville, NYC
China economic challenges

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Inside Nicole Kidman's unconvential relationship with her adopted kids.
"It's my job to love them": Inside Nicole Kidman's relationship with her two oldest children.
In 2018, Nicole Kidman stepped on stage at the Golden Globes to receive an accolade for her role in Big Little Lies.
Accepting the award in front of her husband Keith Urban, the actress thanked her two young daughters – Sunday Rose and Faith Margaret.
At the time, the 51-year-old's acceptance speech led to a flurry of questions from fans and the media alike.
While Kidman had thanked her two youngest children in her speech, many questioned why she had failed to mention her two oldest children – 26-year-old Isabella and 24-year-old Connor – who she shares with her ex-husband Tom Cruise.
Now, amid rumours that Kidman wasn't invited to Connor's upcoming wedding to his partner Silvia Zanchi, the actress' relationship with her adoptive children is back in the spotlight once again.
The rumours of a rift between Nicole Kidman and her two eldest children first began when she separated from her former husband Tom Cruise in 2001.
At the time, their kids – who had been raised in the Church of Scientology – chose to stay with their father.
In the years following their separation, it's been claimed on multiple occasions that the Church of Scientology caused a significant fracture in Kidman's relationship with her adopted children.
In Steve Cannane's book Fair Game: The Incredible Untold Story of Scientology in Australia, it's alleged that after Tom Cruise and Nicole Kidman's relationship ended, the Church of Scientology tried to turn Nicole's children against her.
Nicole Kidman and Tom Cruise were married from 1990 to 2001. Image: Getty.
Actress Leah Remini, who was previously involved in Scientology, backed up the claims, alleging that Isabelle and Connor consider their mother a "suppressive person" - a person who has publicly renounced their faith and is no longer allowed to be in contact with other members of the church.
In her memoir, Remini recalled being in the car with Isabella and Connor, and asking if they had seen their mother recently.
"Not if I have a choice," Isabella answered, according to the book. "Our mum is a f*cking SP [suppressive person]."
But while Kidman's relationship with her two oldest children might not be entirely conventional, according to the actress, the reports surrounding an alleged rift between her and her children are completely false.
"I'm very private about all that. I have to protect all those relationships. I know 150 per cent that I would give up my life for my children because it's what my purpose is," Kidman told Who magazine late last year.
When probed about her children's relationship with Scientology during the same interview, Kidman remained diplomatic in her response.
"They are able to make their own decisions. They have made choices to be Scientologists and as a mother, it's my job to love them," she told the magazine.
Connor Cruise and Bella Cruise at an event in 2012. Image: Getty.
"And I am an example of that tolerance and that's what I believe – that no matter what your child does, the child has love and the child has to know there is available love and I'm open here," she added.
Although Bella and Connor both live relatively quiet lives with Bella living in London with her husband Max Parker and Connor working around the world as a DJ, they have both responded to the rumours in the past.
In 2016, Bella was asked by New Idea if she still speaks to her parents, to which she replied: "Of course we talk, they're my parents", adding, anyone who says otherwise is "full of sh*t".
Speaking to Woman's Day, Connor described his relationship with his mum as "solid".
"I love my mum. I don't care what people say, I know that me and Mum are solid. I love her a lot. My family means everything," he said.
Why Nicole Kidman won't talk about Tom Cruise, 17 years after their marriage ended.
Why Nicole Kidman 'forgot' her adult kids at the Emmys: an investigation.
"They made choices to be Scientologists." Nicole Kidman has spoken about her two adopted children.


The nation's massive reforestation project, the Billion Tree Tsunami, has achieved its goal of planting one billion saplings in the country's north-western province of Khyber Pakhtunkhwa.
Over the last 50 years Pakistan's forests have been dramatically depleted, with the country's total forest cover estimated to compose just 2-5% of total land area. Khyber Pakhtunkhwa was particularly affected by forest felling, resulting in increased prevalence of destructive and often fatal floods and landslides.
As a result, former cricket-star turned politician Imran Khan spearheaded the Billion Tree Tsunami in 2014 to restore the region's depleted forest cover and fight the effects of climate change. With Pakistan listed among the six countries that will be most affected by global warming, the project was warmly received and supported by local communities.
In addition to the environmental benefits, the project also involved establishing a network of private nurseries, creating employment for young people and women in the province while boosting local incomes.
The billion trees planted means over 348,400 hectares of forest cover have been added in the region, making Billion Tree Tsunami the first Bonn Challenge pledge to reach its restoration goal. The Bonn Challenge is a global effort to bring 150 million hectares of deforested and degraded land into restoration by 2020 and 350 million hectares by 2030.
The popularity of the project has prompted the federal government to launch its own greening program called Green Pakistan, which will plant 100 million trees across the country over the next five years.
Lock in the dates for National Tree Day 2019! Schools Tree Day will be held on July 26th, 2019 and National Tree Day on July 28th, 2019. Find out more at https://treeday.planetark.org.
There are numerous ways to get involved with the Bonn Challenge and its goals. Find out more at http://www.bonnchallenge.org.
Positive Environment News has been compiled using publicly available information. Planet Ark does not take responsibility for the accuracy of the original information and encourages readers to check the references before using this information for their own purposes.


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Zify Incentivizes Carpooling by Matching Like-Minded Individuals
Prateek Jose November 23, 2015 • 3 min read
Another carpooling app?
Or maybe not…
The team behind Zify, a carpooling application that intelligently matches work commuters with people offering rides, has good reason to believe its service stands out from the rest of the pack.
The startup managed to make it to the final 24 that pitched at The Next Web Summit this year, staving off competition from the 40,000 other startups that applied. They've also landed seed funding from Sean O'Sullivan of SOSVentures, who also saw potential in few teeny products like Netflix and Guitar Hero.
At the Intersection of Carpooling and Fun
At this year's IEEE Intelligent Transportation Systems Conference, a team from the University of Pisa and IBM Research Ireland presented a session on a data-driven approach towards carpooling attempting to achieve genuinely enjoyable experiences while being utilitarian. The researchers made use of crowd-sourced data to understand how to match people based on interests and social profile. Almost a quarter of the participants expressed an interest in carpooling if the possibility of meeting like-minded people in the process existed. It's this opportunity that Indian startup Zify is looking to tap into.
In order to avoid being just another carpooling app, the team at Zify focused on addressing the three biggest impediments to the spread of ride-sharing: security, flexibility, and engagement.
Stranger-danger is probably the biggest sticking point with carpooling. Videos about Uber rides from hell are a fun watch, but all the bad press Uber has been getting for lax security measures has not just hurt its reputation, but it has made people leery of sharing rides in general.
Zify vets drivers though a rigorous process involving both manual and automated social profiling. People offering rides are required to provide proof of ownership and insurance information in order to get verified. Driver ratings are even displayed separately for male and female passengers, so you know if your prospective carpooling host is a gentleman among gentlemen but shady with the ladies (or the other way around).
To address the engagement issue, Zify's key selling point is its part-social-network-part-matchmaking experience through its mobile application. Though the feature isn't fully fleshed out yet, Zify hopes to be something of a MeetUp for carpoolers, so that users aren't just matched by the destination and timing of their commute, but primarily by their common interests. With this service there's the added element of possible serendipity (meeting a future employer, roomie, lover, etc.) on an otherwise boring commute.
Sold on the idea of an affordable car ride with someone who may want to talk mixed martial arts or the dangers of carpooling, I tried to take Zify for a spin myself…
It didn't go so well.
Following the sign-up process, I attempted to get verified but didn't receive the verification code (still waiting on it). The app also tends to throw up error codes that persist across pages until it's restarted.
The bugs and lack of users is understandable given that Zify is still in nascent stages of its development. Things are likely to get better once the startup works on feedback from its beta phase, which launches in New York, Dublin, and London later this month. They're also in the process of raising Series A funding.
Zify is onto a good idea which, with good execution, could give people an affordable way to get around while making friends (or more) in the process.
Feature image courtesy of greenlivingideas.com
Filed Under: Prateek Jose, Startups Tagged With: India, Lyft, Sharing Economy, Transportation, Uber, Zify
Stewart Thornton says
This is a green company and they are trying to do the right thing by offering something that others are not. Being safe would be my concern, but you never know until you try it.
Glenn Ellis says
Even though it might be another yawner, the app is new and brings a little competition to the table. Just like with all new apps and businesses, there are some questions left on the table, but if they can figure those out, it could be a hit.
Joshua Knarr says
Without being verified, I cannot see how this will work. It is good that Zity would require insurance and things like that, but how does that stop a bad situation from happening to the carpoolers? What happens if there is an accident and a death? How do I know if the driver of the carpool isn't some psycho that is about to drive us all into an oncoming lane?
Raymond Langner says
I am cool with another application like this. I have said it before that competition is good, but the best part about "copy cats" is the fact that one of the two will always be better for you in the end.
Lawrence Bean says
First impression is yawn from me as well. On the other hand, the point you make about it making it passed the 40,000 others that applied, changes the argument. In a big city, apps like this work just fine I am sure.
Mark Rankin says
The 1 thing about these types of apps is that they are only going to work if people are using it. so, with that being said, getting to the last 24 in the competition does not always mean its a great idea.


Retweet is a share-like feature that lets you share someone else's tweet on your Twitter timeline. This article explains how to hide retweets on the Twitter app on Android. In doing so, you might miss out some news, jokes, and updates but if you are tired of retweets cluttering your Twitter feeds, this is totally worth it.
Here I covered 3 methods that you can use to hide retweets on Twitter. Unlike any browser extension or other workarounds, these methods hide the retweets all over your Twitter account whether you use Twitter on Android, iOS, desktop clients, or official website. Do note that these methods only hides the regular retweets, if someone adds a caption along with retweet that won't hide. With that said, let's jump right in and check these methods out.
Also read: How to Create Auto Reply Twitter Bot without Coding?
How to Hide All Retweets All Over Twitter?
Here are the 3 methods that you can use to hide the retweets from your feed all over Twitter.
First, go to the Blindfold website and sign in to this app using your Twitter account where you want to hide the retweets and authorize this app.
Once you do that, this app gives you two buttons; "HIDE RETWEETS" and "SHOW RETWEETS". Simply press the "HIDE RETWEETS" button and all the regular retweets will be hidden from your Twitter feeds now on. If you want to see the retweets again, you can do that with the "SHOW RETWEETS" button.
Open the Twitter website (desktop version) and log in with your account.
Go to Settings and Privacy and Choose "Mute Keyword" from the navigation panel present on the left side (direct link).
Click the "Add" button there and type "RT @" as the phrase.
Uncheck "Notifications" (if you want) and tap the "Add" button to save the mute phrase.
Go to Twitter on a desktop web browser and open the following section (https://twitter.com/following). Scroll to reach the end of the page in order to load all the users you follow.
Once you reach the bottom, open the Developer console by pressing the F12 key on your keyboard.
Paste the script given below in the Developer console and press enter to run the script.
This will automatically turn off the retweets from all users you follow. And, if you want to reverse this action i.e., want to turn on the retweets, simply replace off with on in the script ("li.retweet-off-text button").
Note that, this method might not turn off retweets for all the users in a single instance. If that's the case, try to run the script a few screen-lengths at a time.
These are the 3 methods to hide retweets on all over Twitter. You can use any of these methods to hide the retweets as per your convince. By hiding the retweets, you can have a neat and calmer feed.


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Puerto Rico Gov. Ricardo Rosselló continued to fire shots at President Trump on Thursday — warning that "if the bully gets close, I'll punch the bully in the mouth" — following a reported spat at the White House between his top aides and US officials.
Puerto Rico officials were in Washington on Thursday trying to schedule a meeting with Trump to talk about what he reportedly said and discuss the island's increasingly grim situation following several failed attempts to do so, according to CNN.
"Your governor is f***ing things up," said trade adviser Peter Navarro, according to sources who attended the meeting and spoke to CNN.
White House officials denied making the comments and said they were working to connect with Rosselló and his aides.
Trump's comments about the Hurricane Maria relief efforts came Tuesday on Capitol Hill, according to the Washington Post.
Rosselló called him out later that evening, saying his suggestion to cut aid was "below the dignity of a sitting President." He reiterated the statement Thursday during his interview with CNN.
"Electric and all infrastructure was disaster before hurricanes," Trump said.


Give the answer in the simplest form.
Multiply the denominator 3 with the whole number 2. This gives 6.
Now, add 6 with the numerator 1. This gives 7.
This 7 will becomes the improper fraction's numerator. The resulting fraction is 7/3.
Realize that, the denominators are not the same? We need to make the denominators the same before we can add them. To do so, we can use the ideas behind Equivalent Fractions.
Now, with both fractions have like denominators. We can proceed by adding these fractions. This will result in the fraction 37/12.
Notice that, 19/15 is an improper fraction. Even though there is nothing wrong leaving it like this, it is advisable to change it into a mixed fraction.
After conversion, we get the mixed fraction, 3 1/12. Clearly, the answer is A.


If your sensors indicate constantly high PM levels even though you have taken action to improve the air, the sensor may have to be cleaned with dry air. Use a vacuum cleaner or a pump for balloons or bike tires, for instance, or even "canned air" from an electronics store on the sensors area. The sensors area is two circles of holes on the side or on the bottom of your unit.