COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT
Strand, London, WC2A 2LL
Thursday 22nd March, 2001
B e f o r e :
LORD JUSTICE SEDLEY
MR. JUSTICE BLACKBURNE
| DR. C. ANYA
|- and -
|UNIVERSITY OF OXFORD AND ANR.
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr. N. Underhill QC (instructed by Messrs Morgan Cole for the Respondents)
Crown Copyright ©
LORD JUSTICE SEDLEY :
This is the judgment of the Court:
"20. Secondly, the applicant complained that when interviewed he was faced with a panel of three. The panel was chaired by Mr. Briant who had no scientific background at all. Dr. Jan Czernuska, a Lecturer within the Department, had been invited to join the panel as an expert in ceramics, albeit of a somewhat different specialisation, together with Dr. Roberts. Dr. Roberts had already formed an adverse view of the applicant's suitability for the post and had shared those views with Mr. Briant. Dr. Czernuska approached the interview with an entirely unbiased mind. With regard to Dr. Lawrence, neither Dr. Czernuska nor Mr. Briant had any prior information about him beyond that contained in his application form and CV. It was argued that the applicant was thus faced with an interview panel who already slanted away from him when they were at least neutral towards his competitor, Dr. Lawrence. This is an aspect which again the Tribunal considered; one member of the Tribunal took the view that in these particular circumstances prior knowledge of the apparent strengths and weaknesses of an internal candidate was not necessarily less favourable treatment. Criticism had been made on the process of why the shortlisting had been carried out. This had been done by Dr. Roberts alone in the first instance to produce a shortlist of four. The University's policies prescribed a shortlisting panel of two with the candidates to be shortlisted against a "person specification". No such specification had been drawn up at that stage, nor was any drawn up until minutes before the interview commenced. The evidence from the respondents was that the principal criteria were technical and scientific skill and ability, followed by organisational management and presentational skills, specific modelling abilities in analysis and computer simulation, and drive and enthusiasm. The policy specified that applicants should be told beforehand of the person specification whereas in the case of the two applicants there was no such communication other than the delivery to them of the Brite-Euram project application documentation the evening before. This was complex documentation from which it appears that they were expected to analyse the precise nature of the skills which would be required. It was acknowledged by the respondents that this was hardly satisfactory. It emerged during the course of the shortlisting process that the University had a practice or a policy of offering any internal applicant for a post an interview unless manifestly unsuitable. This did not accord with the formal policies of the University. The policies further indicated that the decision would be made following interview after consideration of the Curriculum Vitae and the taking up of references. No references were taken up in this case."
At the end of the next paragraph the Industrial Tribunal record their finding that it was Dr Czernuska who first expressed the conclusion that Dr Anya would not be suitable for the post. Mr Briant and then Dr Roberts expressed their concurrence.
"From [the] authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ. put it in North West Thames Regional Health Authority v. Noone  ICR 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
"On the basis of (a) those authorities, (b) the experience of the members of this Tribunal and (c) the experience of the parties, the advisers and the Tribunal in this case, we tentatively add the following observations and thoughts to the guidance in Neill LJ's judgment in King v. Great Britain China Centre –
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. If the applicant fails to prove that the act of which complaint is made occurred, that is the end of the case. The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application. See Chapman v. Simon  IRLR 273 at paragraph 33(2) (Balcombe LJ) and paragraph 42 (Peter Gibson LJ). In this case the principal complaints made by Dr Qureshi were decision of the FRC not to support a recommendation for his promotion to the post of senior lecturer in October 1992 and the decision of the Dean of the Law Faculty in October 1993 not to put his name forward to the APC with a favourable recommendation for promotion to senior lecturer. The considerations of the Tribunal and their decision should, therefore, focus on those complaints and on the issues of fact and law which have to be resolved in order to decide whether the complaints are well founded or not.
As the Industrial Tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision eg,
(a) Did the act complained of actually occur? In some cases there will be a conflict of direct oral evidence. The Tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the applicant is believed, has he brought his application in time and, if not, is it just and equitable to extend the time?
(b) If the act complained of occurred in time, was there a difference in race involving the applicant?
(c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same, or not materially different, relevant circumstances?
(d) If there was difference in treatment involving persons of a different race, was that treatment "on racial grounds"? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent?
In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.
As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The Applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The Tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits? This case is an illustration of the problem. The complaint of racial discrimination is usually sparked by a core concern of the applicant: in this case his failure to obtain support and recommendations for his promotion to a senior lecturer in the Faculty of Law. Dr. Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years, from 1988 to 1994. The incidents relied on by him ante-date, accompany and post-date the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the Tribunal to find the facts relating to those incidents. They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue namely, whether the acts and decisions complained of in the proceedings were discriminatory "on racial grounds". The function of the Tribunal in relation to that evidence was therefore two-fold: first, to establish what the facts were on the various incidents alleged by Dr Qureshi and, secondly, whether the Tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of. The temptation for the complainant and his advisers, in these circumstances, is to introduce into the case as many items as possible as material from which the Industrial Tribunal might make an inference that "racial grounds" are established. The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds eg, non-racial explanations for his acts and decisions. The result of this exercise is that the parties and their advisers may confuse each other (and the Tribunal) as to what the Tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background. It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, even eclipsed. In practical terms this may lead the case to run on and on for many days or weeks. In the experience of this Tribunal, the longest cases heard in the Industrial Tribunals are cases of racial discrimination.
The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. In Chapman v. Simon (supra) at paragraph 43 Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences. He said –
"...Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the Tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion." (See also Balcombe LJ at para. 33(3))
In the present case, it was necessary for the Tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to [draw] inferences and then for the Tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds". The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference. The Tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.
The additional comments are intended to provide some assistance to the Tribunal to whom this case is remitted (and to other Tribunals) in deciding what are, in our view, the most difficult kind of case which Industrial Tribunals have to decide. The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing. The accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others. In our experience, the Industrial Tribunals discharge this delicate, difficult function conscientiously and carefully. It should not be regarded as a criticism on the Chairman and members of this Tribunal that we have found their lengthy, conscientious and detailed decision, taken after many hearing days and many hours of deliberation, to contain an error of law."
"Claims [of race and sex discrimination] present special problems of proof for complainants since those who discriminate on grounds of race or gender do not in general advertise their prejudices"
Once again, King was highlighted by Lord Browne-Wilkinson as the leading source of guidance. It may be added that, as King and other cases demonstrate, the breakdown of issues need not always be as elaborate as was necessary in Qureshi.
The Industrial Tribunal's decision
"If an employer behaves unreasonably towards a black employee it is not to be inferred, without more, that the reason for this is attributable to the employee's colour; the employer might very well behave in a similarly unreasonable fashion to a white employee."
As Neill LJ pointed out in King, such hostility may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation as the Industrial Tribunal posit here will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races but on evidence that he does.
"… The Tribunal, whilst preferring the factual basis contended for by Dr Roberts and so finding as to the date and the content of the conversation, acknowledged that there is scope for both points of view as contended for by the parties."
"… In many respects inconsistencies have been exposed in these documents between their contents and the evidence given subsequently and to this Tribunal. Those are not without substance and we bear them in mind in the task we have to address, namely whether there has been less favourable treatment and, if so, whether it is attributable to the applicant's race. In this task we are entitled to rely on our assessments of the individuals who have come to us and given evidence. …"
They go on to point out, correctly, that they are unequipped to make judgments on the relative scientific merits of two highly qualified candidates in a leading-edge research field. They summarise Dr Roberts' view of Dr Anya as being not that he was a poor scientist but that he had, along with his strengths, weaknesses which placed him second to Dr Lawrence. They conclude:
"23…. It would be inappropriate for us to characterise any of the witnesses coming before us in this hearing as being untruthful, but we have to say that we regarded Dr Roberts and Professor Cantor as being essentially witnesses of truth despite the inconsistencies that were exposed under skilful cross-examination.
24. The unanimous view of the Tribunal is that we are satisfied that the applicant received less favourable treatment in that Dr Lawrence was appointed when he was not. We are invited to draw the inference [that this] was because of his race and not, as the respondents claim, on a genuine assessment of his scientific strengths and weaknesses. We are disposed to accept the respondents' explanation and in our view the evidence is not sufficient to justify us in drawing the inference of discrimination."
"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."
"It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence ….reference to the objective facts and documents, to the witnesses' motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth."
The Industrial Tribunal has not given any ground, and none is evident, for departing from this classic mode of reasoning in a case where every one of the ingredients mentioned by Lord Goff was present. The citation from The Ocean Frost in fact features in the transcript of this court's decision in Heffer v Tiffin Green (17 December 1998) where Henry LJ concluded, relevantly to the present case:
"Nor were the crucial contemporary documents given proper, detailed and dispassionate consideration, In my judgment they cannot be explained away … by an uncritical belief in Mr Heffer's credibility …"
Credibility, in other words, is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.
The Employment Appeal Tribunal
"… So soon as we turn to the prospects for proving racial discrimination, we are struck by the following. First, no evidence of overt racial discrimination has ever been identified. Second, so far the only proven act of discrimination with possible racial overtones is the rejection of Dr. Anya by the interviewers in favour of the white Dr. Lawrence – or, to be more accurate, the failure of Dr. Roberts, as abetted by Mr. Briant, to overrule Dr. Czernuska's admittedly non-discriminatory rejection of Dr. Anya on academic grounds. We write 'so far' out of deference to the complaint of inadequate fact finding but it is difficult to see what other facts once found could serve to make Dr. Anya's case additional to the proven act more effective.
… Nobody in the context of a complaint of racial discrimination could have listened to evidence over so many days without a growing and legitimate realisation that Dr. Anya's task of proving such was speculative to the point of being hopeless. We think that the Tribunal obtained such an overview from the totality of that which was put before it and gave expression to it in the relatively brief general terms of the concluding paragraphs of the Extended Reasons. We think further that any such overview must consciously or unconsciously have affected the Tribunal's fact finding initiative: why find the specific facts that are sought when it is obvious that none such are going to provide those compelling grounds that will turn that which we have identified as possible into that which has been proved as probable?
We reiterate our deference to the authorities. We emphasise that this case features a complaint with such inherent improbabilities as in our judgment can properly curtail the fact finding process in favour of the mature, simple overview."