England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ EADY QC, PROF MOHANTY AND MR YEBOAH
UKEAT/0155/13/DM

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/03/2015

Lord Justice Bean:

1. The appellant was at all material times and still is a Professor of Economics at Leicester University. He was head of department from 2005 to 2008. He brought proceedings in the employment tribunal alleging race discrimination against the university and its then Vice Chancellor and Pro Vice Chancellor. There were no less than 66 heads of complaint (or 77, if one counts different causes of action separately). The case was heard in the Employment Tribunal at Leicester over 19 sitting days between 7^th November 2011 and 1^st May 2012. Prof Fraser was represented, then as now, by Ms Nabila Mallick. The Tribunal was composed of EJ Maidment and two lay members. By a reserved judgment sent out on 30^th July 2012 they dismissed the claim.
2. Prof Fraser appealed to the EAT. At a preliminary hearing Judge Richardson and two lay members directed that some (but not all) of the grounds of appeal should go forward to a full hearing. The full hearing took place before HHJ Eady QC, Prof Mohanty and Mr Yeboah on 5^th and 6^th March 2014. By a reserved judgment handed down on 5^th June 2014 the EAT dismissed the appeal.
3. Prof Fraser sought permission to appeal to this court. This was refused on the papers by Arden LJ in a decision issued on 16^th October 2014. She held that there was no question of law for this court. Ms Mallick, on behalf of Prof Fraser, has renewed the PTA application orally before me.
4. The ET's judgment runs to 630 paragraphs spread over 113 pages. As Ms Mallick correctly points out, the length of the decision does not necessarily mean that it is well reasoned. But the decision cannot possibly be described as superficial. In any event, Ms Mallick, in this court, has focussed on two grounds of appeal. The first, headed "victimisation" is very specific. The second, headed "cumulative consideration" relates to the tribunal's cumulative consideration of the appellant's complaints. I shall consider these in reverse order.
5. Where a tribunal is considering a discrimination claim founded on a large number of allegations spread over a long period of time it must, while giving each allegation appropriate consideration proportionate to its importance in the overall scheme of things, it should be careful not to lose sight of the wood for the trees. The ET in this case said at para 625:-

"Having due regard to the Rihal case (that is Rihal v London Borough of Ealing [2004] IRLR 642) the tribunal is mindful that the scope and individual detail of the many allegations involved could lead to an overly fragmented approach. The tribunal has therefore sought to stand back to be sure that the bigger picture is exposed."

After referring to some individual themes of the allegations the judgment continues:

"It has therefore done so in terms of the total picture which these themes make up. Having done so the tribunal sees instances of unreasonable treatment of the claimant, of delays and of poor practice. It does not however find facts from which a conclusion of race discrimination could be drawn. Furthermore and in any event it has found explanations for the claimants treatment which are unrelated to his race or colour, or him having brought, or it being suspected that he might bring, a complaint of race discrimination."

6. On appeal to the EAT Judge Eady and her colleagues said this:-

"We tentatively suggest that the reason why the claimant is unable to see the broader canvasses made by the tribunal is because they do not reveal the image he already has in mind; he thus continues to focus on the individual brushstrokes of the allegations in an attempt to repaint the picture. If one stands back from the detail and adopts a holistic approach (Qureshi; Fearon; Rihal; X v Y) the tribunal's answer to this case is clear. The claimant's complaints were seen as arising from the history of dysfunctional relationships and departmental disputes existing in the Department of Economics and were not identified in any way with race nor with any possible complaint of race discrimination."

7. I regard that as a fair overview of the ET's findings. Just as Ms Mallick is right to say that the length of the ET's judgment is not conclusive proof of its correctness, so it must be said on the other side that the number of allegations relied on by the appellant is not proof of their correctness either. I can find no error of principle in the ET's approach to the two stage test for race discrimination. It is simply a fallacy to argue, as Ms Mallick does, that there were so many instances of unreasonable treatment, delay and poor practice, that the tribunal were bound to conclude that the appellant may have been treated less favourably on grounds of race, and thus passed the first stage of the familiar two stage approach to the burden of proof.
8. It was for the tribunal to decide whether or not to draw an inference of less favourable treatment when examining the many allegations of unreasonable treatment, delay and poor practice (and, at least in the case of one witness, Ms Fitzpatrick, the rejection of her evidence on one issue of fact as untrue.) That was the very issue, or the central issue, which they had to decide. Their judgment explains with immense thoroughness why they declined to draw the inference. There is no arguable error of law to be found.
9. I turn to ground 1. This is a complaint that the third respondent, the Pro Vice Chancellor, Professor Thompson, committed an act of discrimination by way of victimisation of the claimant by not giving proper consideration to his allegations against his successor Prof de Fraja in particular by reason of a suspicion that the claimant intended to make a claim of race discrimination. The third respondent was also accused of simple race discrimination in this respect, complaining that he had been aggressive and adversarial in a grievance meeting. Prof Fraser claimed before the tribunal: "I believe this was because I am black and the outcome of my complaint against Prof de Fraja was already in his favour". The direct allegation of race discrimination was rejected by the ET on the facts and quite rightly is not the subject of an appeal.
10. In relation to the victimisation allegation the claimant was able to rely on something said by the third respondent in an interview with Prof de Fraja, namely a reference to the Macpherson report. As to this the ET said:

"471. The Tribunal in its deliberations has also carefully considered the explanation for Professor Thompson's actions against the face that he raised in his interview with Professor De Fraja the Macpherson report in terms, he said, of defining the test which should be applied in examining complaints of harassment.

472. The reference to the Macpherson report strikes the Tribunal as odd and somewhat jarring. On balance the Tribunal has to conclude that this reference can only have been made because the Claimant is black. Obviously, the Claimant himself had not on the evidence formulated a view himself that he might be being less favourably treated on the grounds of his race. The Tribunal does not conclude that Professor Thompson suspected that the Claimant's treatment by reason of his race might be an issue of complaint either at that point or in the future. It is most unlikely given the lack of any hint of a racial element in the Claimant's case at this point that he would have suspected a complaint of race discrimination. In Professor Thompson's mind there was nothing of a racial nature about the complaint or how he himself was dealing with it, but at most it could be concluded that he was mindful that a black complainant dissatisfied with the resolution of a grievance might make an allegation of race discrimination just as a pregnant woman might say that she was being poorly treated because of her pregnancy. This falls short, the Tribunal believes, of a suspicion that the Claimant intended to make a discrimination claim. There was still no protected act.

473. The Tribunal can not in any event find a linkage between any detrimental treatment of the Claimant and any suspicion Professor Thompson might have had that a claim of race discrimination might be brought. The reasons for the disparity in treatment between Professor De Fraja and the Claimant are already set out above.

474. The Tribunal also notes that it would be strange for someone with a racist mindset who is going to victimise someone on the grounds of their race to refer to a well known report, a report which is to most people a byword for "institutional racism". The Tribunal recognises that such considerations may be over simplistic and that intentions, motivations and reasons for race discrimination can be very hidden including within the mind of the perpetrator him or himself. Fundamentally, again, the Tribunal concludes that Prof Thompson's treatment of the Claimant was in no way connected to his race or any suspicion that he might complain of race discrimination."

11. The submission of Ms Mallick before the EAT (and before me) was that the claimant had in fact made good his case in this regard and that the reference to the Macpherson report shows at least that Prof Thompson suspected that a race discrimination complaint was going to be made. The EAT said that even if it was correct that there was force in the submission that the ET had found Prof Thompson to be "mindful" that a black complainant might allege race discrimination and that this should have been enough to lead to a finding of suspicion that he might, there would still need to be a connection between such suspicion and the treatment of the claimant. The ET clearly found as a fact that Prof Thompson did not take any action on the basis of mindfulness of the possibility of a complaint. They held that Prof Thompson's view resulted from a genuine scepticism regarding the claimant's grievances (para 489) and that his decisions were unrelated to the claimant's race or to any suspicion that he might make a complaint of race discrimination (paras 494 & 497).
12. The EAT held that those findings of fact were not susceptible to challenge on appeal and I agree. I should add that Ms Mallick criticised the reference in the last line of para 472 to suspicion that the Claimant intended to bring a discrimination claim; suspicion that the person victimised intends to make an allegation is sufficient in law, even if there is no suspicion that a tribunal claim might be issued. So it is, but the word "claim" is ambiguous, and the reference by the ET at the end of para 474, as well as in paras 494 and 497, to the absence of any suspicion on Prof Thompson's part that the Claimant might make a complaint of race discrimination demonstrates that this is not a point of substance.
13. I also agree with the EAT that this ground of appeal was doomed to fail for other reasons which they set out at paragraph 106 of their judgment. It related to actions that were the subject of the first of the appellant's two claims to the ET in which he had, as they put it, eschewed victimisation as a cause of action; and even if the ET had been entitled to consider it as part of a general victimisation complaint raised in the second claim it would have been out of time, and the ET had made a finding that it would not be just and equitable to extend time.
14. For these reasons, notwithstanding Ms Mallick's best efforts, the renewed application for permission is refused.