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

		Royal Courts of Justice Strand London, WC2
		11 June 2003

1. LORD JUSTICE KEENE: This is an application for permission to appeal against the decision of the Employment Appeal Tribunal dated 15 April 2003, whereby the EAT, as I shall call it, allowed the respondent's appeal against part of a decision of the Employment Tribunal. The respondent had been one of three respondents before the Employment Tribunal; the other two being the Tottenham Legal Advice Centre and an employee of that Centre. Ms Campbell, the respondent to this appeal, had been the director of the Centre at the relevant time. The applicant had been employed at the Centre in circumstances to which I shall come. He brought a number of complaints against the original three respondents -- complaints of discrimination and victimisation. Most were dismissed by the Tribunal, but in respect of the complaints of discrimination against Ms Campbell, the applicant succeeded. That decision, however, was overturned by the EAT.
2. The applicant, Mr Onuegbu, is black and is of Nigerian ethnic origin. Ms Campbell is also black, being of Afro-Caribbean ethnic origin. In 1999, a vacancy arose for a solicitor to act as supervisor of a legal aid franchise in immigration work for the purpose of obtaining such a franchise. Ms Campbell believed that such a supervisor had to have three years' post qualification experience in immigration work and the advertisement for the post so specified. She also believed that such experience had to be full-time.
3. The sole applicant at that stage was offered the job but did not accept and it was therefore readvertised. Two external applications were made; one of them being from a Mr Bild -- a white man whom the respondent believed had the necessary qualifications. At this stage the applicant did not apply. Before the interviews could took place, the funding for the post was withdrawn and no appointment could be made. Mr Bild was told that if the funding materialised, the respondent would write to him again. In the interim, the applicant, who qualified in 1998, was asked to act as a locum supervisor for immigration work for a period of three months from 1 January 1999 and thereafter, on a month-to-month basis. The Legal Aid Board, as it then was, accepted that he was qualified to work in that locum position.
4. In early March 2000, funding was restored. Mr Bild was asked, pursuant to a letter from the respondent dated 10 March, whether he was still interested in the post and wished to apply. The applicant received no such letter, but on 20 March 2000, Ms Campbell asked him orally when he rang her about another matter whether he wished to put himself forward. As a result, both Mr Bild and Mr Onuegbu became candidates. They were interviewed on 20 April 2000 by two members of the Centre's Management Committee and an external solicitor. Mr Bild obtained a higher score and was offered the post.
5. The respondent was not involved with the interview process itself. Nonetheless the Tribunal found that she had treated the applicant less favourably in three respects. First, it concluded that she had taken the view in 1999 that the applicant did not qualify to be a supervisor for legal aid franchise purposes because he did not have three years' post-qualification experience. In fact, said the Tribunal, he was qualified because Ms Campbell had made what it called "a genuine mistake" as to the qualifications set by the Legal Aid Board for such a post. In contrast, although neither Ms Campbell nor anyone else at the Centre knew it, Mr Bild was not qualified for the job because he had not, at the material time, taken one essential course, although his application form made it look like he had. He did not in, fact, take that course until July 2000 after the interview and the offer to him of the job. However the Tribunal found that Mr Onuegbu was not intending to apply for the post when it was first advertised in 1999. He became a candidate in March 2000 and was not barred from applying because of Ms Campbell's views about his qualifications. The Employment Tribunal found that the approach adopted to the applicant's level of qualification was "entirely less favourable to him" than the approach adopted to Mr Bild. It said "there is a duality of approach which the Tribunal finds to be of importance". So that was the first aspect.
6. Secondly, the Tribunal regarded the failure of Ms Campbell to advise the applicant by letter, on or about 10 March 2000, about the new recruitment process, as she did Mr Bild, as less favourable treatment. It said this at para. 10.4.3:

"It is not sufficient for Ms Campbell and Ms Reith to point out that everyone in the office knew about the re-establishment of the grant and that application forms were readily available. That is not the point. TLAC [the centre] had promised in their letter of 22 December 1999 that the applicant would be 'invited to submit an application'. That promise was not fulfilled and it is not appropriate to suggest that an employee, even in a small organisation such as this, should have been aware of what was going on. It was the employer's duty to advise him and Ms Campbell failed in not doing so."

7. Thirdly, it referred to the fact that initially the applicant was not required to complete an application form for the job, being an internal candidate. Indeed the Tribunal saw some possible advantage to the applicant in this. But the Centre's Committee, on 18 April, two days before the interview, changed its mind. Ms Campbell, on the morning of 19 April, prepared a note informing Mr Onuegbu of the need to complete an application form, asking him to complete it by the end of the day, but she put the note on his desk where it became covered by other post and the applicant did not see it until later in the day. He did see it at that stage. He did not complete it, but he was nonetheless permitted to proceed with the interview. The EAT subsequently commented that there is no suggestion in the Tribunal's determination that the absence of an application form handicapped him. Of this the Employment Tribunal said at page 85 of the bundle:

"It was quite inappropriate of Ms Campbell to tell him of this change in the way in which she did. She worked in the same room as him and should have told him verbally. Whilst we appreciate that the relationship between the two of them may have deteriorated as a result of the various events which we have recorded, this did not absolve her, as a manager, from telling him what was an extremely important piece of information. The applicant offered no specific comparator for this incident. This is a situation where we can look for a hypothetical comparator. There was no evidence that Ms Campbell was so inconsiderate to others. This must be less favourable treatment."

8. Those then were the incidents of less favourable treatment according to the Tribunal. Under section 1 of the Race Relations Act 1976, less favourable treatment amounts to direct discrimination if it is "on racial grounds". That, therefore, was the second issue the Tribunal had to determine. On this it noted that Ms Campbell's error as to the qualifications needed for the job "throws doubt upon the effectiveness" with which she had checked the position. On the failure to advise the applicant as early as she did in relation to Mr Bild, the Tribunal stated that the applicant may have known about the situation "but a manager in these circumstances should have advised him expressly". On her leaving a note on his desk, the Tribunal commented:

"We appreciate that she may well have been upset by the complaint which the applicant had made against her, but this did not absolve her from carrying out her management responsibilities in a proper way."

It then concluded as follows at paragraph 15:

"We have considered her explanations for these matters. We do not consider them to be adequate. There are too many incidents when her conduct was adverse to the applicant for us to consider that they were just errors. There must have been some reason which was personal to the applicant. In the absence of any acceptable explanation as to why this should be, the Tribunal is led inevitably to consider that the reason must be the applicant's race. We therefore find that Ms Campbell did discriminate against the applicant in respect of these matters."

9. The EAT allowed Ms Campbell's appeal on two main grounds. First, it concluded that the Tribunal had erred in its approach to whether there had been less favourable treatment. On the failure to advise the applicant about the job even if he was already aware of it, the EAT said this at paragraph 35:

"Plainly the Tribunal took the view that Ms Campbell's conduct had been in breach of her duty as his manager, but the Tribunal did not ask themselves whether Ms Campbell would have acted differently if Mr Onuegbu had been of a different race. Mr Bild was not a true comparator; he had already made known his interest in the post and was an outsider who could not have known that the post had again become available without being told. Mr Onuegbu was an insider who had not previously applied for the post. The Tribunal neither considered whether the circumstances of Mr Bild were the same or sufficiently close to those of Mr Onuegbu for him to be a comparator nor, if they were not -- as seems to us plainly to have been the case -- what Ms Campbell would have done in the same situation if Mr Onuegbu had been of a different race. Instead the Tribunal concentrated on Ms Campbell's breach of her duty as they saw it. That view is repeated and expanded upon in paragraph 14 of the decision."

10. The EAT saw the same error of approach occurring on the qualifications issue. On the placing of the note on the desk incident, the EAT said that the Tribunal fell into error because it did not find how Ms Campbell would have behaved had she been dealing with a hypothetical comparator of a different race. It had merely said that there was no evidence that she was "so inconsiderate to others".
11. Secondly, the EAT also regarded the Tribunal's reasoning as defective on the issue of whether any such treatment had been on racial grounds. The EAT noted that the Tribunal had referred to a general explanation given by the respondents as a whole that there had been a degree of administrative incompetence, but it said Ms Campbell's explanation went further than that. At paragraph 30, the EAT commented:

"Her explanation in relation to the delayed information as to the renewed availability of the supervisor's post was, at least in part, that Mr Onuegbu was aware that the post was again available, as was everyone in the office, and that it was Ms Campbell herself who had, as the Tribunal expressly found as fact at paragraph 3(xxiii), invited him to apply for the post. Her explanation on the qualifications issue was, at least in part, that she had made enquiries in the appropriate place and genuinely believed that Mr Onuegbu was not qualified, as indeed, again, the Tribunal expressly found. It does not appear from paragraph 15 that the Tribunal considered these aspects of Ms Campbell's individual explanations. They could not be subsumed into a general explanation based on administrative error or based on a belief that nothing wrong had been done."

12. The EAT then went on to say at paragraph 31:

"Nor, in our judgment, did the Tribunal adequately set out why they rejected Ms Campbell's explanations or what findings of fact drove them to the conclusion that the differential treatment was on racial grounds. There were clear possible alternatives to that finding. The Tribunal indicated at paragraph 3(xxx) that the relationship between Mr Onuegbu and Ms Campbell was not good. At paragraph 3.1 they said:

"'The applicant is a man of considerable ability. He is, however, prone to exaggeration. It is also clear from the evidence and particularly from the correspondence that he readily adopts a bullying attitude when challenged. This appears from . . . the various complaints which he made. He appears unable to accept criticism in any form, even when quite mild. When criticised or when affairs do not take the term which he expects, he is over ready to ascribe this to discrimination.'

"Before March 2000 he had made complaints against Ms Campbell which the Tribunal decided were unfounded. The findings of fact demonstrate that there had been a poor relationship between them before the post of supervisor became available again . . .

"The case was not one in which the position was so clear that there was no need for the Tribunal to set out any findings beyond those which they set out in paragraph 15".

13. Thus the EAT concluded that, on the second aspect, the decision fell below the requisite standard because it simply did not state, in the presence of other alternative explanations, why they regarded themselves as driven inevitably to the conclusion which they reached. That decision by the EAT is now challenged by the applicant who has appeared this afternoon on his own behalf. Mr Onuegbu argues that there was no error of law in the lower Tribunal's decision. That Tribunal, he says, applied the correct legal tests and directed itself properly as the EAT accepted. He refers to the decision in Yeboah v Crofton [2002] EWCA Civ 794, which makes the well-known point that the EAT should not interfere if there is no error of law in the decision of the lower Tribunal.
14. On the topic of whether the treatment was on racial grounds, it is said by Mr Onuegbu that it is wrong to say that the lower Tribunal did not give adequate reasons for rejecting the explanations given my Ms Campbell. The Tribunal, he says, did not need to repeat itself. Its conclusions were a permissible option open to it. The ET expressly said, as Mr Onuegbu points out, that it had taken into account all the submissions that were made to it. On the topic of less equal treatment, it is submitted that here, in this particular case, such treatment was clear. The applicant criticises the EAT for having concentrated on the Tribunal's references to Ms Campbell's management responsibilities and he emphasises that the lower Tribunal found what it called "a duality of approach" on the qualifications issue. This, in summary says Mr Onuegbu, was a properly reasoned decision by the lower Tribunal and one which should not have been overturned by the EAT.
15. I have to say, for my part, that it seems to me that the EAT's criticisms of the lower Tribunal's reasoning are valid and do disclose errors of law in the approach adopted. The Tribunal below may have set out the correct legal tests earlier in its decision, but that is not sufficient if it does not then apply those tests to the facts which it finds. To apply an incorrect test in such a situation can and usually will amount to an error of law, even if the correct test has been recited correctly earlier in the judgment. Here, on the issue of whether there was less favourable treatment, the Employment Tribunal went astray in focusing on whether Ms Campbell had treated the applicant as a responsible employer should have done. It did not, for example, ask itself whether Mr Bild was a proper comparator when it came to the question of being told about the new recruitment process. He was, after all, in a factually different situation from the applicant because he was an outsider. He did not work within this relatively small office. He therefore would not be expected to know about the new process unless written to. The applicant was not in that situation. The Tribunal observed that he may have known about the new process before being told my Ms Campbell over the telephone. The Tribunal simply swept this aside on the ground that "this did not absolve her from carrying out her management responsibilities".
16. One is bound to ask: what has that got to do with the issue of less favourable treatment and a proper comparator? It is not the right test as the House of Lords made clear in Zafar v Glasgow City Council [1998] IRLR 36. The same is true when one turns to the incident of the note left on the desk. Maybe as a good manager Ms Campbell should have told the applicant orally, or verbally as the Tribunal put it, at paragraph 10.4.7, but again, that is not the test. The Tribunal did not ask how she would have acted but for the applicant's race.
17. As for the issue of qualifications. I have to say that I find the Tribunal's logic mystifying. Ms Campbell, on the Tribunal's findings, made a genuine error as to the criteria to be applied under the legal aid fund rules. On that basis the applicant did not qualify. There was no issue as to that. The fact that there was an inadequate investigation of Mr Bild's alleged qualifications does not establish less favourable treatment. I can only conclude that the EAT's criticisms on this issue of less favourable treatment are soundly based.
18. I turn then, and briefly, to the other issue of whether any such treatment was on racial grounds. Here again I take the view that the EAT was right. There were, on the evidence, explanations for these incidents other than a racial basis for them. There was clearly some friction between the applicant and Ms Campbell, to some extent apparently caused by the applicant's own conduct. There was, as the Tribunal noted, a poor relationship between him and Ms Campbell. The way in which he was notified about the recruitment process was explicable on the basis that he was already working at the Centre, he was an insider and did not need a more formal notification, and there were other factors to which the EAT refers.
19. I entirely accept that the Tribunal below was seeking to apply the approach in King v The Great Britain-China Centre [1991] IRLR 513, namely that if no explanation or an inadequate one is put forward for a difference in treatment and there is a difference in race, the Tribunal may then infer that the discrimination was on racial grounds. But nonetheless, a Tribunal is, in that situation, obliged to explain, except in the most obvious and clear cut cases, why it regards the explanations offered as inadequate: see for example Anya v University of Oxford [2001] IRLR 377. It must make it clear why it has reached the conclusion which it has. Here the Tribunal did not give adequate reasons for arriving at that conclusion and in so doing it fell into error. The EAT's criticisms of it on this score were right. In those circumstances, I have concluded that this appeal has no real prospect of success and it follows that this application must be dismissed.
20. I would nonetheless reiterate what the EAT said in its judgment at the very end when remitting this matter, namely that both parties should consider whether it would not be wiser to try to resolve this matter without a further hearing. Given the matters referred to at paragraph 44 of the EAT's judgment, the amount likely to be awarded to Mr Onuegbu, were he to be successful eventually, may not be large and the time and money involved in a further hearing is likely to be disproportionate. I would also like to pay tribute to the careful and rational fashion in which he has presented his arguments this afternoon. They have been persuasive but I am afraid not persuasive enough. Thank you very much.
Application dismissed.