England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 3rd May 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, dated 7th February 2002, His Honour Judge Wilkie QC presiding. The Employment Appeal Tribunal dismissed an appeal against a decision of an employment tribunal dated 16th August 2000. The tribunal was held at London Central, Mrs R S Martin presiding. Its unanimous decision was that the applicant, Mr S O Williams, had not been discriminated against contrary to the Race Relations Act 1976. A review of that decision was requested and was refused by the chairman on 22nd September 2000.
2. The applicant, Mr Sunday Williams, who is Nigerian and of black African origin, is employed by the respondents, HM Prison Service, at operation support grade level. At the time of the tribunal's decision he was working at Holloway Prison. He made complaints of racial discrimination, which I will cite from the extended reasons of the tribunal:

"(i) Mr Williams complains that he was discriminated against on racial grounds when he took part in but failed an assessment process at Birmingham Prison on 14th June 1999;

(ii) Mr Williams also complains of similar discrimination when he failed the `sift' criteria on applying of a post as a prison officer at Highpoint Prison in September 1999;

(iii) Mr Williams further complains that he was victimised within section 4 of the Race Relations Act 1976 in respect of (ii) above, since he had lodged an originating application in respect of (i) above on 18 September 1999."

3. At the hearing before the Employment Tribunal the applicant was represented by counsel, and gave evidence on his own behalf. Before the Employment Appeal Tribunal he was represented by his cousin Mr Tiyamiyu who has, with the leave of the court, made the application orally this morning. Mr Tiyamiyu has legal training, and tells me he hopes to be on the Bar Vocational course starting in the autumn. He has prepared a helpful skeleton argument, has addressed the court forcefully and made sustained submissions which have taken one hour.
4. Both the extended reasons of the Employment Tribunal and the reasons of the Employment Appeal Tribunal are carefully and conscientiously set out. The Employment Appeal Tribunal have dealt with the points of law which were sought to be made on behalf of the applicant save for one point with which, it is claimed, they did not deal and to which I will refer.
5. I agree with the reasoning of the Employment Appeal Tribunal. They have considered the points of law arising. This is, in effect, a second appeal though not so defined in the rules, in that a tribunal with a circuit judge presiding has considered the points of law upon which the claim is based.
6. I set out the six points which the applicant seeks to make as they appear in the skeleton argument. (1) The tribunal erred by failing to give full reasons so as to explain why the appellant lost his complaints of discrimination (Lindsay v Alliance & Leicester plc [2000] ICR 1234. Reliance is placed on paragraph 41 where a judgment of Lord Justice Balcombe in Hampson v Department of Education and Science [1989] ICR 179 is set out. (2) The tribunal erred by failing to answer the question posed by Section 2 of the Race Relations Act 1976 before dismissing the appellant's victimisation claim. (3) The tribunal erred by failing to answer the question posed by Section 1 (1) (a) of the Race Relations Act 1976 before dismissing the appellant's claim of race discrimination. (4) The tribunal erred in law in failing to make a specific finding whether Mr Williams had in fact failed the sift criteria. (5) The tribunal erred in failing to adopt a proper legal analysis when deciding the appellant's complaint of racial discrimination. (6) The tribunal erred in law in failing to apply a consistent basis to the facts in accordance with the requirements of Section 3 (4) of the Race Relations Act 1976.
7. Having expressed my agreement with the reasoning of the Employment Appeal Tribunal, I refer to the points which Mr Tiyamiyu has emphasised orally. He relies upon the decision of this court in Balamoody v United Kingdom Central Council for Nursing [2002] IRLR 288. I have been supplied with a copy of that report. Mr Tiyamiyu has set out in his skeleton argument the two paragraphs on which he relies. The point was before the Employment Appeal Tribunal. At paragraph 57 Lord Justice Ward stated:

"The crucial question in this appeal is whether or not it was necessary, on the particular facts and in the circumstances of this case, to require a hypothetical comparator. That, in my judgment, is a matter of law because it goes to the manner in which the tribunal is to approach a case. If a hypothetical comparator is required and the tribunal does not direct itself to the need for that control group against which to test the discriminatory treatment, then the tribunal would err in principle. It would not simply be an error in the exercise of discretion."

8. It is submitted that the tribunal did not take a hypothetical comparator as they should have done.
9. Mr Tiyamiyu addressed me, first, upon the JSAC assessment at Birmingham which the Employment Tribunal dealt with at paragraphs 5 to 18 of their extended reasons. The tribunal considered the fairness of the procedure and whether it had been complied with. They considered whether the assessment of the applicant had been carried out according to the internal guidelines set out. Reference was made to the assessment of Mr Smith and the tribunal dealt with that. The applicant failed the assessment. The tribunal held that the finding was not an unreasonable finding. Moreover - and this is the point in the case - they have explained in detail that it was not, in their judgment, as the tribunal of fact put it -

"neither has found any evidence of racial bias in the JSAC assessment procedure."

10. I do not consider that the point raised in Balamoody and in earlier cases provides an arguable basis for appeal in these circumstances. If two people of different races are interviewed, for example, and there are no specific criteria, then a tribunal would have to apply its mind as to whether, upon the test in King to which Mr Tiyamiyu has referred, racial discrimination is present. In this case the assessment was by objective criteria. The tribunal referred to the fact that the criteria had been "independently reviewed for any sign of bias", and they found that it had been properly applied in this case. They did test the question of discrimination by reference to Mr Smith. Whether or not he was an appropriate comparator, the assessment was done on the objective basis on which the tribunal found it to have been done. This was not a case, as the Employment Appeal Tribunal found, where it was necessary to create a hypothetical comparator. It was a case where the tribunal were entitled to consider the matter as they did and it plainly follows from their findings that the applicant would have been treated no differently had he been of a different race.
11. Mr Tiyamiyu has stressed that is the "Highpoint" application, the subject of point 2 in the tribunal's decision, upon which he wishes to concentrate. Again, the reasoning of the Employment Appeal Tribunal appears to me to be appropriate to the situation and thorough, and a conclusion is reached which the tribunal were entitled to reach.
12. I refer to one point which has been emphasised on the applicant's behalf on the basis it was not dealt with by the Employment Appeal Tribunal, and that is point 4 of those I set out from the skeleton argument. It is said in support of point 4 (paragraph 27 of the skeleton argument) that the tribunal erred in law in failing to make a specific finding whether the applicant had failed the "sift criteria" set out in 8100 and whether the additional condition in paragraph 5.4.6 genuinely formed part of those sift criteria, as it should have done. It is submitted, by reference to the documents in the bundle, that paragraph 5.4.6 does not form part of the sift criteria.
13. When his application was refused the applicant was sent a letter dated 4th October 1999 which stated:

"I refer to your recent application to join the Prison Service. I am sorry to have to advise you that you have failed to meet the sift criteria for prison officer. It is not our policy to enter into any further correspondence or dialogue on this result.

Thank you for the interest you have shown in the Prison Service."

14. The Employment Tribunal set out 5.4.6 in their decision:

"Candidates who fail to meet the standard at JSAC are unlikely to do so without further life experience or coaching/training in interpersonal skills. Accordingly, candidates must be advised not to apply again for at least 12 months."

15. The tribunal record the applicant had complained he was not so advised.
16. The reasoning and decision of the Employment Appeal Tribunal plainly relate to 5.4.6 and the tribunal stated at paragraph 22:

"Although the Tribunal heard evidence as to the possible ambiguity of paragraph 5.4.6 our finding is that on any interpretation Mr Williams would have been unable to reapply as early as September 1999."

17. They go on to consider the matters they then bore in mind and set out at paragraph 25 the contentions made on behalf of the applicant. They deal with the evidence which had been given as to other employees - Mr Smith, Miss Cabble, Miss Cadoza. They express their conclusion that the evidence was insufficient -

"to allow the Tribunal to draw any inference that he [Mr Williams] was treated differently from any other colleague or that there was incipient practices within the Prison Service of differentiating between black and white candidates for appointment to prison officer."

18. The general conclusion is stated at paragraph 28 following references to the nature of the recruitment drive which the Prison Service had conducted and to the fact that it was admittedly a predominantly white employer:

"We have come to the conclusion that there is no evidence that in JSAC process or the Highpoint recruitment Mr Williams was treated any differently from his white colleagues. It is therefore not possible to make any findings that any of the treatment was discriminatory on the grounds of his race. In addition there is no evidence that the rejection of Mr Williams's Highpoint application was on account of his having started Tribunal proceedings in respect of the JSAC complaint."

19. The point is made and fairly made that it is arguable that paragraph 5.4.6 is not a sift criteria, and yet it was to the sift criteria that the Prison Service referred when refusing the application. In my judgment, that does not however, in the circumstances of this case, provide an arguable case that this court would reverse a decision of the Employment Tribunal. They may have misdescribed paragraph 5.4.6, but plainly they were acting upon an appreciation of that paragraph and following argument before them, and the opportunity of considering evidence before them as to its effect in the circumstances which existed. The applicant was represented by counsel. It is plain from the summary of the submissions made that the point was under consideration as to whether another candidate had sat two JSAC assessments within 12 months. The matter was open to be canvassed and it was canvassed before the Employment Tribunal.
20. The second point made is that the Employment Tribunal did not expressly consider the point in London Borough of Hackney v Fashola (unreported), a decision dated 12th January 1996 of the Employment Appeal Tribunal, Mr Justice Mummery, President, presiding upon a victimisation claim. It is stated by Lord Justice Mummery that two questions must be answered:

"The first is whether the complainant was less favourably treated than someone who has not done a protected act within Section 2 (1). Secondly, whether that less favourable treatment, if it is established, was due to the complaint made to the Industrial Tribunal or commission of some other protected act identified in Section 2 (1)."

21. Having referred to the facts of the case, Lord Justice Mummery continued:

"That is a failure to focus on the key question of less favourable treatment. There is no indication in this decision that the tribunal addressed the question whether the Council had treated Miss Fashola less favourably than they would treat a person who had not made complaints of race discrimination against them. That is a fundamental requirement of the Section. Unless we are satisfied that the Tribunal have addressed it, it must follow that an error of law in the decision makes it necessary to allow an appeal."

22. That principle does not, in my judgment, establish an arguable ground of appeal in the circumstances of this case. I have referred to the care with which the Employment Tribunal approached their task and which they gave to the evidence before them. They plainly found that the fact that a complaint had been made in relation to the Birmingham JSAC had no bearing upon their decision at Highpoint. They considered the circumstances in which the decision had been taken in relation to the Highpoint application. They considered evidence as to how other applications had been considered. In those circumstances the question of race did not arise. There is a plain finding that the applicant was not disadvantaged in his Highpoint application by reason of a complaint being made in relation to the Birmingham JSAC.
23. It follows inevitably from the findings they made that they had not treated the applicant less favourably than they would have treated a person who had not made complaints of race discrimination against them. In the circumstances of this case it was not necessary, following the findings they did make, to include a further statement using that terminology.
24. I have endeavoured to concentrate upon the points which Mr Tiyamiyu has made orally this morning. I do that for the reason I have already given that I find the reasoning of the Employment Appeal Tribunal upon the points made on the applicant's behalf to be satisfactory and not to require further elaboration.
25. The further point to which I refer expressly is the complaint that the decision of the Employment Tribunal was insufficiently reasoned. It will be clear from what I have said already that, in my judgment, the reasoning was sufficient in the circumstances of the case. They were entitled to find that race discrimination had no part in the decisions adverse to the applicant which were taken.
26. In my judgment, the manner in which they have expressed they findings and reasoned their conclusions is satisfactory. It is not arguable that this court would quash or remit the decision of the Employment Tribunal for lack of reasons or for any of the other matters now put forward on the applicant's behalf. For the reasons given this application is refused.
Order: Application refused