England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ RICHARDSON
UKEAT/0310/10/JOJ

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/12/2011

Lord Justice Mummery:

Introduction

1. The issue in this appeal is whether the Employment Tribunal (ET) sitting at Hull on 15 February 2010 correctly applied the statutory burden of proof provisions in its judgment on a complaint of race discrimination brought by Mr Noureddine Bouzir against Country Style Foods Limited (the Company).
2. Section 54A of the Race Relations Act 1976 provided that:-

"(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent-

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B) (a),(e) or (f), or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act."

3. Regulation 29 of the Employment Equality (Religion or Belief) Regulations 2003 is drafted in similar terms. It applies to a complaint of discrimination on grounds of religion or belief, such as was made in this case by Mr Bouzir's wife in addition to her own claim of race discrimination.
4. Although now replaced by similar provisions in the Equality Act 2010, the earlier provisions of the 1976 Act and the Regulations continue to apply to the determination of this case.
5. This appeal is from the order of the Employment Appeal Tribunal (EAT) dated 18 May 2011 allowing Mr Bouzir's appeal from the ET's dismissal of his complaint for the reasons set out in its judgment sent to the parties on 19 March 2010. The EAT remitted the case to a freshly constituted ET for re-hearing.
6. I granted permission to appeal on 29 July 2011 on the basis that the appeal raised a short arguable point of law on the operation of the burden of proof provisions in s. 54A(2), as interpreted by this court in Igen v Wong [2005] EWCA Civ 142 in the Annex at paragraph [76]; [2005] IRLR 258.

Background

7. Mr Bouzir is an Algerian citizen. Mrs Bouzir's national origins are Latvian. They are both of the Muslim faith. They both have the right to live and work in the United Kingdom. He has worked as a chef in restaurants and takeaway food shops. More recently they were both agency workers and gained experience of the food manufacturing industry.
8. In 2009 Mr and Mrs Bouzir unsuccessfully applied for permanent positions as "Production Operatives" with the Company, which carries on a food processing business on five different sites, at its bakery in Grimsby. The Company employs a multi-racial workforce of many different nationalities.
9. They were both interviewed on 7 July 2009 as requested by Mr Sorenson, the Company's Human Resources Department Assistant, who undertook the recruiting exercise for about 30 additional staff at the bakery. Mrs Bouzir wore a headscarf at the interview. Documents relevant to their marriage and their ability to work in this country were produced by Mr and Mrs Bouzir. Mr Bouzir went to the local police station to have them certified when their validity was queried by Mr Sorenson. Mr and Mrs Bouzir were asked about their relevant experience. Reference was made to attendance at a 2 day induction on 9 July 2009. The interview with Mr Bouzir was not continued after he returned from the police station, with a note to the effect that the documents were genuine. Mr Sorenson informed him that there was no further time available. He had to interview the next candidate. Mr Sorenson told them that they would be contacted by telephone about attendance at an induction.
10. Neither Mr nor Mrs Bouzir received a telephone call from Mr Sorenson or the Company. On 9 July they both attended the Company's premises. They saw two groups of white people being given induction training. They were both told that they could not participate in the induction, as neither of them had been successful in their job applications. When Mr Bouzir asked for a letter explaining why they had not been successful, Mr Sorenson said that it was not Company policy to supply a letter. Both Mr and Mrs Bouzir then took advice from the local CAB. Correspondence followed.
11. On 13 August they received a copy of a letter dated 9 July, which they had not received earlier, saying that successful candidates had previous bakery experience. In fact, only 3 of 30 successful candidates had had previous bakery experience.
12. The Company did not reply to statutory questionnaires served on 26 August 2009 asking detailed questions about the make-up of the applications for the vacancies and the candidates appointed. The Company's explanation for that failure was that the HR staff thought that the claims by Mr and Mrs Bouzir were settled.
13. On 15 September 2009 Mrs Bouzir presented a complaint of race and religious discrimination. Mr Bouzir's complaint was only for race discrimination. The Company did not reply to their request for copies of certain documents, including their application forms. The Company was unable to produce the forms and did not disclose any interview notes in the proceedings.

ET decision

14. In the hearing in the ET at Hull on 15 February 2010 Mr and Mrs Bouzir appeared in person. The Company appeared by a director, Mr C Wood. The ET did not have the professional legal assistance which the EAT and this Court received from counsel representing the parties.
15. The ET delivered its decision giving oral reasons. It later provided written reasons as requested by Mr Wood.
16. There is no dispute that the ET correctly directed itself on the relevant law, including the burden of proof provisions and the judicial guidance in Igen v Wong, in paragraphs [8] to [12] of its judgment.
17. Mrs Bouzir's claim for religious discrimination was upheld. The Company did not appeal. Her claim for race discrimination was dismissed. Mrs Bouzir did not appeal.
18. Mr Bouzir did appeal, as his claim for race discrimination was dismissed in the circumstances and for the reasons set out in paragraphs [38] to [41] of the ET's judgment.

"38. Having looked at the evidence the Tribunal initially concluded that there appeared to be evidence supporting the claim that Mr Bouzir has been discriminated against because of his Muslim religion. However when the finding was announced Mr Wood for the Respondent pointed out that Mr Bouzir had only claimed race discrimination. An examination of the Claimants' ET1 paragraph 5 showed that he ticked only the box relating to race. In the concluding part, Paragraph 15 of Section 5.2 of the ET1 he stated:-

"I believe I have been unlawfully directly discriminated against contrary to sections 1(1)(a) of the Race Relations Act 1976."

He submitted a questionnaire on race discrimination only. In his witness statement he stated:-

"I believe that the reason why I was not offered the job was because of my race."

39. In those circumstances we agreed with the Respondent that the Claimant had not submitted a claim for religious discrimination but had confined his claim to race discrimination.

40. The Tribunal considered whether Mr Bouzir had established that there was race discrimination. The Claimant is an Algerian citizen. Although the Respondent does not employ another Algerian, there was no evidence to show that the Claimant's race was the reason why he was not offered the position.

41. The Respondent does have a policy of employing staff of many different nationalities and there was no evidence to show either directly or by drawing inferences that the reason for the Claimant not being offered a job was his Algerian citizenship. While the Respondent did not behave particularly well in respect of its failure to communicate with the Claimant after the interview or to notify him not to attend the induction, and despite the failure to reply to the questionnaire, there still does not seem to be sufficient evidence to show that this was related to the Claimant's race rather than to some other reason."

19. I note that, in upholding Mrs Bouzir's unappealed claim for religious discrimination, the ET concluded:-

"36. ….since the Respondent was so evasive in replying to the questionnaire and the request for documentation, since they relied on the reasons in the letter of 9 July which they considered to be common to both Claimants and since they sought to claim that Mrs Bouzir did not have sufficient experience and because of the failure of the Respondent to produce any documentation relating to successful candidates, that the Respondent is either concealing or not admitting the true reason. The Tribunal can only conclude that, in the case of Mrs Bouzir, the reason was her Muslim religion which was clearly evinced by her attendance at the interview wearing a headscarf."

20. In dismissing Mrs Bouzir's unappealed claim for race discrimination the ET said that there was no evidence of her being discriminated against on the ground of her Latvian citizenship. Many of the Company's employees are Latvian. There was nothing in the evidence of either side which would indicate that she was being treated less favourably in not being offered a position because of her Latvian origin.

EAT decision

21. The EAT concluded that the ET had not properly considered or addressed the burden of proof provisions and that there plainly was material from which the ET could conclude, in the absence of an adequate explanation, that the Company refused or deliberately omitted to offer Mr Bouzir employment on racial grounds. The references in paragraphs [40] and [41] of the ET judgment to there being "no evidence" or no "sufficient evidence" to show grounds related to race rather than to some other reason did not appear to take any account of a shift in the burden of proof in accordance with s.54A (2). The EAT regarded the general policy of employing staff of many different nationalities as relevant background material, but not as sufficient to prevent a shift in the burden of proof to the Company.

Company's submissions

22. In his concise submissions for the Company Mr David Reade QC criticised the EAT for interfering with the judgment of the ET, which contained correct self- directions as to the shifting burden of proof, and also for making its own inferences and substituting its own decision on a question for decision by the ET i.e. whether Mr Bouzir had made out a prima facie case of discrimination on the grounds of national origins. It is clear, he submitted, from the way in which the ET dealt with the claims of Mrs Bouzir, that the ET looked to the Company for an explanation for its failure to offer her a position with the Company. That must have been the consequence of the ET concluding that, in the absence of an adequate explanation, religion or national origin was the reason for non-selection for the position applied for by Mrs Bouzir.
23. In the case of Mr Bouzir the reasoning of the ET was adequate to show that it specifically applied the test for the shifting of the burden of proof. The ET concluded that facts had not been established from which it could conclude, in the absence of an adequate explanation, that Mr Bouzir had been discriminated against on the ground of his origin as an Algerian national. The ET had not failed to take account of the burden of proof. The ET had reached conclusions which were open to it on the evidence before it and were supported by adequate reasoning. The conclusion in the case of Mr Bouzir could not be characterised as perverse. Indeed, the ET had properly focused on the material fact of the Company's policy of employing staff of many different nationalities. The ET had properly taken account of that material when considering whether facts had been established from which the ET could conclude, in the absence of an adequate explanation, that Mr Bouzir had been discriminated against on the ground of his origins as an Algerian national.

Discussion and conclusions

24. The proper approach of this court to the judgment of the ET is not to be finicky or fussy, but to read the entirety of its judgment in a fair and reasonable way.
25. I agree with a lot of what Mr Reade submitted on behalf of the Company. He correctly pointed out that Mr Bouzir's claim was not based on membership of a particular racial group, ethnicity or colour. He accepted that the ET had treated the claims of both Mr and Mrs Bouzir as of discrimination on the grounds of national origins, Algerian in his case and Latvian in her case. It was important, he said, not to blur the distinction between the different grounds of racial discrimination. Mr Reade also accepted that s. 54A (2) applied in this case, although, as he explained, it would not have applied to a claim of discrimination on the grounds of nationality having regard to the definition of "racial grounds " in s. 3(1) of the 1976 Act.
26. I also agree with Mr Reade that the ET's summary of the law on the burden of proof was correct. It is for the ET, as the fact finding body, to analyse the evidence and draw the inferences that may be properly drawn from the primary facts. The role of the EAT and this court is limited to errors of law. In discharging that role the EAT and this court should, of course, treat the decision of the ET with proper respect and not substitute their own findings for those of the ET.
27. This appeal turns on whether or not the ET correctly applied its correct self- directions to the facts found by it. It is on this point that I part company with Mr Reade, and reject his criticisms of the judgment of the EAT.
28. I am persuaded by Mr Josling appearing for Mr Bouzir that paragraphs [40] and [41] of the ET judgment read more naturally as placing the burden of proof on Mr Bouzir and as then considering whether he had discharged the burden, rather than as amounting to proper consideration of the prior question arising under s. 54A (2) of where the burden of proof should lie. The ET appear to have skipped the stage of asking whether Mr Bouzir had established a prima facie case of discrimination in accordance with s. 54A(2). It should have decided first whether the burden of proof had shifted to the Company.
29. Instead, it seems to me, as it did to the EAT, that the ET proceeded directly to a conclusion that Mr Bouzir had not proved his case of race discrimination. This is surprising, especially when it appears that the ET initially gave reasons for its initial conclusion that he had established a prima facie case of religious discrimination, though, as was pointed out to it after giving that decision orally, that form of discrimination was never the subject of a claim by Mr Bouzir.
30. In my view, facts were found by the ET from which the ET could have concluded, had it applied its mind to the burden of proof, that Mr Bouzir had been treated less favourably on the grounds of his national origins. I refer to Mr Sorenson's failure to complete Mr Bouzir's interview after returning from the police station; his failure to inform them of attendance at the induction as promised; the failure of the Company to answer the questionnaires; the inaccurate letter of explanation for not offering him employment; and the non-disclosure of documents, such as application forms. From that combination of facts the ET could properly conclude, in the absence of an adequate explanation, that the Company had committed an act of racial discrimination.

Result

31. I would dismiss the appeal. The ET erred in law because it failed to apply the burden of proof provisions to the facts of the case. The EAT was right to allow Mr Bouzir's appeal and to order the matter to be remitted to the ET for re-hearing by a different tribunal.

Lord Justice Richards:

32. I agree.

Lord Justice Rimer:

33. I also agree.