England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL Tribunal
(MR JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 10 April 2002

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal from the decision of the Employment Appeal Tribunal, given on 3 December 2001 at a preliminary hearing. The Appeal Tribunal, chaired by Maurice Kay J, dismissed the appeal of Miss Kausila Kularatne of the decision of the Employment Tribunal at London Central on 14 August 2001, dismissing the claim made by her against the Horizon NHS Trust for race discrimination. The paper application was refused. That application was made on the basis of a skeleton argument of Mr Cooray dated 17 February 2002. The renewed application is made by Mr Robin Allen QC on the applicant's behalf.
2. As Mr Allen rightly pointed out at the opening of his helpful submissions, the question for the court is whether there is a real prospect of the proposed appeal succeeding. It can only succeed if there is a point of law arising from the decision of the Employment Tribunal. The court has to focus on whether there is an arguable question of law on the Tribunal decision.
3. Mrs Kularatne is a State Registered nurse employed by the NHS Trust. She was the manager of two units operated by the Trust for the provision of day services for in patients with learning difficulties and disabilities. The units were based at the Harperbury Hospital. The two units of which she was manager were called Woodlands and the Activity Centre. There were other units, one of which was managed by Miss Anna MacFarlane. She is white and is British. A third set of units was managed by Mr Pointu.
4. The circumstances which have given rise to the complaint of race discrimination originate with the advent of what is called "Care in the Community". That meant, in practical terms, the contraction of units. The various units were contracted into two units with one Team Manager. The problem facing the Trust was who to appoint as the Team Manager.
5. The process started in 1999 and is described in the extended reasons of the Employment Tribunal. It involved a 3-stage process which had been agreed by Union and staff representatives on behalf of the employees of the Trust. The Tribunal set out in the extended reasons the progress of the procedure. Those involved panel interviews. Unfortunately for Mrs Kularatne, she finished second. In first place, securing the appointment of Team Manager - Day Services was Miss Anna MacFarlane.
6. It was in those circumstances that complaint was made to the Employment Tribunal. The Employment Tribunal found that, by reason of the fact that Mrs MacFarlane had secured the post, Mrs Kularatne had been treated less favourably. There was a difference in race between them. The Tribunal rejected the complaint of race discrimination. I refer to the crucial passages in the conclusions of the Tribunal starting with their self-direction on the law. This is contained in paragraph 2 of the extended reasons which sets out the relevant sections of the Race Relations Act 1976 and the leading authority of King v Great Britain China Centre [1991] IRLR 513. It is accepted by Mr Allen that there is no error in the self-direction on law as to the questions which the Tribunal must ask itself, namely:

"(1) Did the Respondent treat the Applicant less favourably than others treating like with like?

(2) Was there a difference in race?

(3) Was the treatment on racial grounds?"

7. The Tribunal said that the question at the end of the day was:

"Has the Applicant shown that it was more probable than not that she was the victim of racial discrimination?"

8. The Tribunal then proceeded to make their findings of fact and to deal with the case presented by the applicant. They stated their conclusions in clear terms in paragraph 6 as follows:

"It follows from our findings that this Tribunal, whilst accepting that of course the Applicant was treated less favourably than Ms McFarlane in that she was not appointed to the position of Team Manager - Day Services whereas Ms McFarlane was, and whilst of course accepting that there was a difference of race between Ms McFarlane and the Applicant, is not satisfied that the treatment of the Applicant was on racial grounds. Indeed, we are quite satisfied on the evidence that we have heard that the appointment of Ms McFarlane was an appointment purely on the merits as a result of a fair procedure and that race played no part at all in either the process or the decision.

We, of course, recognise that the Applicant, looking at the matter from a personal perspective, sees herself as being the best=qualified candidate and can only think therefore that the reason that she was not selected was on racial grounds. However, we have looked carefully at all aspects of the process and the decision and can see nothing to support what she says in this regard. Her case is, in essence, that the appointment of Ms McFarlane was a put up job and that the whole process was a sham and calculated to result in the appointment of Ms McFarlane.

It follows from that that what the Applicant is really saying is that there was a conspiracy between Mr Trewin [the Line Manager] and the Members of the Discussion Panel - a conspiracy designed to achieve the object of appointing Ms McFarlane to the position of Team Manager - Day Services. This Tribunal is quite satisfied that there is absolutely no evidence in this case to support that conclusion. We find that there was no less favourable treatment of the Applicant on racial grounds in this case and her complaint of race discrimination fails."

9. The Employment Appeal Tribunal found that there was no arguable question of law arising from that decision. They held that there was no misdirection. They rejected a number of detailed points made in support of the appeal by counsel for Mrs Kularatne.
10. At the outset of his submissions, Mr Allen accepted that there was no question of law arising from a number of points previously advanced. He accepted that there was no independent point regarding an unsuccessful application made to the Appeal Tribunal for an adjournment when a new counsel had been instructed late in the day to replace the original counsel. He also accepted that there was no question of race discrimination arising in respect of an internal review sought by Mrs Kularatne and determined against her on 7 January 2000.
11. Mr Allen made it clear that he was not seeking to argue that the decision of the Employment Tribunal was perverse in the sense of being obviously wrong. He expressly accepted that, on the evidence, the decision of the Tribunal could have gone either way. As already indicated, he accepted that the self-direction of law contained in paragraph 2 was correct.
12. Mr Allen has put a different emphasis on the case from that put before the Appeal Tribunal or in the skeleton argument before this court on the application on paper. His focus was on the "inadequacy of the reasoning of the Tribunal", by which he meant there were points relevant to the primary facts of the case from which inferences may be drawn of racial discrimination. He says that those points should have been addressed in detail in the extended reasons, but they were not. He rightly emphasised the importance in race discrimination of clear decisions by Employment Tribunals on questions of primary facts which form the source material for the important process of making inferences.
13. Mr Allen developed the point by identifying three areas in which he said there had been a failure of the Employment Tribunal to provide adequate reasoning or, as I interpreted his argument, to make a clear finding of primary fact on matters that Mrs Kularatne regarded as important in her case. He submitted that the failure of the Employment Tribunal to do this meant they had fallen into error such that the probable result of an appeal would be that the matter would have to be remitted for rehearing by the Employment Tribunal. He explained that, although the Employment Tribunal had given a full decision it had focused "exclusively" on the arguments advanced by counsel then acting for Mrs Kularatne of deliberate discrimination based on the allegation of the appointment process being a sham and the appointment of Mrs MacFarlane being a put-up job. As a result, Mr Allen submitted, the Employment Tribunal had failed to assess what he described as "odd features" of the evidence or to make clear findings of primary fact from which the Tribunal might have been able to make inferences of race discrimination.
14. The points which Mr Allen emphasised are as follows. First, he pointed to the evidence about the score sheets on competence based on the CVs and training records of the candidates. The important point which he sought to make on this was that it appeared from Miss MacFarlane's CV that she claimed to have a BSc Honours degree. In fact, as appeared from the evidence given by Mr Trewin, the Line Manager, this was taken into account by him. He gave evidence to the effect that Miss MacFarlane had proved herself out of the other candidates to be developing her skills by attending a degree course. As appeared from Miss MacFarlane's evidence, she had not obtained a BSc degree. She had started a degree course in 1997 at Hertfordshire University but had dropped out of the course after only three months. Mr Allen submitted that this aspect of the case does not feature in the extended reasons. It should have been specifically addressed by the Employment Tribunal and they should have made a finding about that. This was clearly a matter which Mrs Kularatne regarded as an important aspect of her case against the NHS Trust.
15. The second area on which Mr Allen focused was a passage of an unsigned witness statement made by Miss MacFarlane. He said that paragraph 13 of the statement was evidence of a racist perception. It said:

"Initially, in my work with the respondent I did feel I struggled because one of the few English staff in what was largely a Mauritian world. Up until the 1990s there were not many English managers in the Respondent but since then there have been more."

16. Mr Allen observed that that passage does not appear in those words in paragraph 13 of the witness statement which Miss MacFarlane's signed statement, in which she said:

"Up until the 1990s there were not many English nursing managers on the Harperbury site of the Respondent but since then there have been more."

17. Again he pointed out that this aspect of the case is not dealt with by the Employment Tribunal. He said that in a race case the making of such a comment was a significant feature of the evidence which should have been expressly dealt with in the decision.
18. The third point raised by Mr Allen dealt with the procedure before the discussion panel and on the notes that were made and were available, or not available as the case may be, to the Employment Tribunal. He referred to the notes of the interviews. The important point which he sought to make, and which is made in the skeleton argument before the Employment Tribunal in support of the submission that the selection process was a sham, was that the interview notes of Mr Soophul, the only ethnic minority member of the discussion panel, had disappeared and were not available. As was put in the skeleton argument before the Employment Tribunal at paragraph 8 Mr Soophul's notes "conveniently disappeared".
19. The submission ultimately made by Mr Allen was that collectively these three areas, which arise on the evidence but were not dealt with by the Employment Tribunal, raise a point as to whether the decision of the Employment Tribunal was adequately reasoned. If it was not, he submitted that that would raise a question of law as to whether the Employment Tribunal had correctly set about the process of dealing with the claim for race discrimination. If they had not dealt with the points as they should, then primary facts had not been found as they should have been. That would mean that there was insufficient material upon which the Tribunal could reliably decide whether or not an inference could properly be made that the reason Mrs Kularatne was not appointed due to race discrimination.
20. Although the submissions have been put in a very persuasive and clear way, I have reached the conclusion that this appeal has no real prospect of success. I do not think that these three points, either separately or cumulatively, raise a question of law. It is well established it is not necessary for an Employment Tribunal to deal with every aspect of the evidence put before it in making out its reasons for allowing or rejecting a claim. The focus of this case before the Employment Tribunal was on the allegations that the whole appointment process was a sham and that the appointment of Miss MacFarlane was a foregone conclusion. That way of putting the case was firmly rejected, as appears from the passage already quoted from paragraph 6 of the extended reasons.
21. I do not think it follows that the Tribunal failed to have regard to the possibility that there was race discrimination, quite apart from the case of deliberate discrimination advanced as the main case. It is clear from the Tribunal's self-direction that they were well aware of the necessity to look beyond direct discrimination or conspiracy theories to see whether there were primary facts from which they could make an inference of race discrimination.
22. In my view, the three points do not add up to anything of significance, however significant they may appear to be to Mrs Kularatne. As to the first point, it is clear that the Tribunal knew, when it came to make its decision, what the true position was about Miss MacFarlane's BSc qualification claim. They must have had it in mind when they came to make the decision, whether or not racial grounds were the reason for not appointing Mrs Kularatne.
23. As to the element of alleged racist perception in the unsigned witness statement, I have failed, even with the assistance of Mr Allen in answering my questions, to understand what relevance her perception had to the claim of race discrimination against the NHS Trust. It seems to me that any such perception on the part of the appointee to the position is not relevant to the alleged race discrimination by the appointor.
24. Thirdly, the point about the unavailability or disappearance of the interview panel discussion notes made by Mr Soophul is not sufficiently cogent to raise a question of law on the decision of the Employment Tribunal. It was not as though this was the only matter that was relevant to the panel discussion meetings. There were other well documented notes in relation to the interviews and the scoring. I cannot see that that point on its own could possibly amount to a ground for doubting the correctness of the Employment Tribunal decision in law.
25. I can understand that Mrs Kularatne feels aggrieved about not securing the appointment of Team Manager - Day Services. She may regard certain aspects of the process as involving unfairness to her, but that is not sufficient to persuade the court that there is a question of law arising from a decision that race did not enter into the decision to appoint Miss MacFarlane rather than Mrs Kularatne.
26. For those reasons, I do not think this appeal has a real prospect of success. I would therefore refuse the application for permission.
27. LADY JUSTICE HALE: I agree.
Order: Permission to appeal refused.