COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
London, WC2A 2LL
Friday 31st May 2002
B e f o r e :
LORD JUSTICE MUMMERY
SIR CHRISTOPHER SLADE
| SAMUEL KENNEDY YEBOAH
- and -
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Bernard Crofton in person
Crown Copyright ©
|Lord Justice Mummery|
|The Appeals: Introduction||1|
|The Approach of the Court of Appeal||9|
|A. Application No 56617/94 presented on 6 October 1994 [Recruitment Fraud]||21|
|B. Application No 69479/94 presented on 16 December 1994 [Sabbatical leave for Ms Warnock]||42|
|C. Application No 23230/95 presented on 21 April 1995
[Investigation into immigration status and into criminal background (The Police List case)]
|Employment Tribunal Decisions: General Approach||56|
|The Relevant Law||58|
|The General Conclusions of the Employment Tribunal||59|
|The General Conclusions of the Employment Appeal Tribunal||61|
|A. Application No 56617/94||62|
|B. Application No 69479/94||65|
|C. Application No 23230/95||67|
|General Conclusions on this Appeal||69|
|Particular Grounds of Appeals Except Perversity|
|A. Personal and vicarious liability for Race Discrimination in Employment Cases||71|
|C. Burden of Proof||76|
|D. Order of issues||84|
|E. Conduct of Tribunal Hearing||86|
|F. Defences of Public Policy and Privilege||90|
|B. The Sabbatical Leave for Ms Warnock Issue||97|
|C. The Police List and Criminal Enquiry Issue||105|
|D. The Recruitment Fraud Issue||109|
|Sir Christopher Slade||124|
|Lord Justice Brooke||125|
Lord Justice Mummery:
The Appeals: Introduction
The Approach of the Court of Appeal
The Employment Tribunal Proceedings
A. Application No 56617/94 presented on 6 October 1994 [Recruitment fraud].
" I believe that the allegations which I actually made are all capable of being substantiated."
"…systematic recruitment fraud was a problem that began to emerge only in early 1995. At that stage, in order to deal with it, Mr Yeboah instructed Miss Reynolds to undertake an enquiry and set up a Recruitment Working Party. Prior to early 1995, there was some recruitment fraud, but what became apparent in early 1995 was that organisations which seemed to be bona fide had been established to provide false references."
B. Application No 69479/94 presented on 16 December 1994 [Sabbatical leave for Ms Warnock].
C. Application No 23230/95 presented on 21 April 1995 [Investigation into immigration status and into criminal background (The Police List Case) ].
Employment Tribunal Decisions: General Approach
" We have made findings of primary fact from which we have drawn inferences. We have looked at the totality of the primary facts as found in all of the seven cases in order to see if it is legitimate to infer that the acts of discrimination complained of were on grounds of race or constituted acts of victimisation. We have directed ourselves that a fragmented approach would have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. This has been of particular importance in considering the conduct of Mr Crofton over an extended period of time.
The assessment of the parties and their witnesses, when they give evidence, also forms an important part of the process of inference…..It is rare that a Tribunal has such lengthy opportunity for assessing the parties and witnesses, and that has also assisted us in drawing, or not drawing inferences of racial discrimination."
The Relevant Law
The General Conclusions of the Employment Tribunal
i) Mr Crofton conducted a campaign against Mr Yeboah manifested by, and consisting of, a long series of allegations commencing in June 1992 and continuing in 1993, 1994 and 1995 and, indeed, in the Employment Tribunal.
ii) Mr Crofton believes that Africans, particularly West Africans, have a propensity to commit fraud. He exhibited a distrust of Africans in actions described by the tribunal. He made the assumption that, because (as he perceived it) all Africans were fraudulent, Mr Yeboah was also fraudulent.
iii) Mr Crofton's explanation for making the allegations was that he believed that they were true, or that he reasonably believed them to be true.
iv) The tribunal did not believe that the allegations were true or that Mr Crofton reasonably believed them to be true. The tribunal formed the view that Mr Yeboah was a person of integrity and an honest witness. The tribunal did not feel able to place their confidence in Mr Crofton as a witness.
v) In cases where there was evidence of an independent witness or contemporaneous documentation which could be checked, it was transparently clear that Mr Crofton could not have believed the allegation to be true. The "transparent cases" identified by the Employment Tribunal assisted it in coming to the same conclusion in respect of all the allegations.
vi) Mr Crofton had not made similar allegations against any non-African person, apart from an isolated incident involving Mr Sugrue, another employee of the Council.
vii) By making allegations of corruption, of covering up fraud and of improper conduct Mr Crofton treated Mr Yeboah less favourably than he treated or would treat other persons. It was less favourable treatment than his treatment of non-African staff.
viii) The effective cause for the allegations was Mr Yeboah's race. But for his race Mr Yeboah would never have been subjected by Mr Crofton to such treatment.
ix) The making of the allegations caused Mr Yeboah considerable distress over a long period of time. Such allegations against him as Head of Personnel were bound to have an adverse impact on him and an impact on others' perception of him.
The General Conclusions of the Employment Appeal Tribunal
A. Application No 56617/94
B. Application No 69479/94
C. Application No 23230/95
General Conclusions on this Appeal
Particular Grounds of Appeal Except Perversity
A. Personal and Vicarious Liability for Race Discrimination in Employment Cases
C. Burden of Proof
" In considering this question we have firstly looked to see if Mr Crofton has provided a non-racial explanation for making [the allegations], and this has required us to consider whether the allegations are true, or whether Mr Crofton believed them to be so on reasonable grounds."
"the onus would be on [Mr Yeboah] to disprove the "non-racial" explanations and/or show that [Mr Crofton] did not have a belief on reasonable grounds."
D. Order of Issues
E. Conduct of Tribunal Hearing
" conduct the hearing in such manner as it considered most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
F. Defences of Public Policy and Privilege
"It is not acceptable for an appellant to state as a ground of appeal simply that "the decision was contrary to the evidence" or that " there was no evidence to support the decision"or that "the decision was one that no reasonable tribunal could have reached and was perverse"or similar general grounds, unless the notice of appeal also sets out full and insifficient particulars of the matters relied on in support of those general grounds".
B. The Sabbatical Leave for Ms Warnock Issue
"H) That Sam Yeboah rewarded Cathy Warnock (at that time an employee in the central administration section of the Race Realtions Unit) for signing his naturalisation papers in 1985 by awarding her a sabbatical."
C. The Police List and Criminal Enquiry Issue
D. The Recruitment Fraud Issue
Sir Christopher Slade:
Lord Justice Brooke:
"Ground 13: Perversity
This ground of appeal is largely unparticularised and so cannot be responded to. Counsel for SY has made the observation that the lack of particulars means the ground cannot be responded (and accordingly sustained) at the last interlocutory hearings. The Employment Appeal Tribunal has agreed."