England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 3rd April 2001

LORD JUSTICE HENRY:

1. The applicant, Mr Scott was one of four candidates short-listed for interview on 2nd April 1997 for a managerial post in the housing department of the London Borough of Hillingdon.
2. The successful candidate turned down the job offer, and so the position had to be re-advertised, as it was on 16th April 1997. Though a council officer had said that all candidates were up to standard, none of the three remaining applicants were permitted to re-apply. This was particularly surprising in Mr Scott's case, given his qualifications. Accordingly, in July 1997, he commenced a racial discrimination claim against Hillingdon.
3. At the same time, he had pending a racial discrimination claim against the neighbouring London Borough of Ealing, for whom he had worked for 3½ years until the beginning of 1995. The issue of those proceedings was a protected act under section 2(1)(a) of the Race Relations Act, 1976 ("the 1976 Act"). At the hearing of that claim, Mr Scott discovered that each local authority (by their members or officers) knew or suspected that he had made a similar claim against the other - for otherwise, why would they be talking about his case. Accordingly, he concluded that Hillingdon had branded him a trouble-maker and he added a claim for victimisation under section 2 of the 1976 Act to his claim for direct discrimination.
4. Miss Gemma White of counsel (who was instructed at a late stage and brought coherence to the proceedings) submits that the Industrial Tribunal followed the guidance for such claims set out by Neill LJ in King -v- The Great Britain China Centre [1991] IRLR 513 at 518, paragraph 38, in finding that Mr Scott had been discriminated against under section 4(1)(a) and 4(1)(c) of the 1976 Act, and victimised under section 2(1)(a).
5. First, the Industrial Tribunal asked itself whether Hillingdon had treated Mr Scott less favourably than others. It answered this question "Yes", for reasons set out in paragraph 18 of its judgment. The crucial part of Hillingdon's account is why, given Mrs Webb's findings as to the satisfactory quality of the field at the first interview stage (and as informally expressed on the telephone to Mr Scott) she did not go back to the councillors to suggest, when the successful applicant refused the job offer, that they considered the remainder of the field, or at least allowed them to re-enter the contest.
6. To answer the second question, there was a difference in race, so having regard to the third and fourth sub-paragraphs of Neil LJ's guidance in King (above), the Tribunal looked to Hillingdon for an explanation. In paragraph 25 of their judgment they concluded that Hillingdon's explanation was "entirely unsatisfactory", and should be rejected.
7. The Tribunal then went on to consider whether Mr Scott's less favourable treatment was attributable to race. It concluded that it was not. That posed the question: what was the explanation for the less favourable treatment. The tribunal then undertook the last stage of Neill LJ's guidance, namely to consider the primary facts, and the inferences which can be drawn from them,

"... bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the claimant to prove his case."

8. The Tribunal inferred, from the absence of any other explanation that

"... the reason why he was denied selection as the next best candidate, and in particular why he was prevented from reapplying when the job was re-advertised, was because he was targeted as a trouble maker and a person who had brought a race discrimination claim against a neighbouring authority. We recognise the lack of hard evidence to justify this inference, but bearing in mind the difficulties that Mr Scott would have in producing such evidence, we are satisfied that on the balance of probabilities it is the true and only explanation for the respondent's conduct."

9. The Tribunal detailed the facts they relied on.
10. Miss White submits that the conclusion they reached was an inference which the industrial jury could properly draw, the Tribunal having given Hillingdon and Ealing every opportunity to explain why their officers were discussing Mr Scott's race claim against Ealing.
11. I am persuaded that permission to appeal should be granted. I say in passing that I recognise that the Employment Appeal Tribunal took the view that the appellant's case was that one of the voting councillors (rather than an officer) must have known (rather than just suspected) of the race discrimination claim against Ealing, but I am not satisfied that Mr Scott's case was so limited Miss White submits that that was an inference
ORDER: Permission to appeal granted. (Order does not form part of approved Judgment)