Industrial Tribunals Northern Ireland Decisions

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Cite as: [2006] NIIT 2280_01, [2006] NIIT 2280_1

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2280/01

CLAIMANT: Arun D Pherwani

RESPONDENT: The Surgical Training Committee of the NI Post Graduate Council for Medical and Dental Education

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the questions set out at Paragraph (2) below should be answered in the affirmative, and that this evidence should be admitted at the full hearing of this case.

Constitution of Tribunal:

Chairman (sitting alone): Mr D Buchanan

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.

The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Director of Legal Services, Central Services Agency.

By an originating application presented to an industrial tribunal on 4 June 2001, the claimant, Doctor Pherwani, alleged that he had been discriminated against on racial grounds by the respondent when he was unsuccessful, following an interview on 6 March 2001, for the post of Specialist Registrar Type 1 post in General Surgery. The claimant alleges both direct and indirect discrimination.

At a Case Management Discussion before another Chairman on 29 November 2004 the parties agreed that a pre-hearing review should be held to determine the following issues:-

(i) Whether the failure of the respondent to appoint the claimant to a Specialist Registrar Type 1 post and to admit him to the Type 1 training programme in 1999, 2000 and 2001 and the under representation of ethnic minorities:-

(a) as members of the bodies responsible for selection; and

(b) as appointees to Specialist Registrar Type 1 posts is admissible as evidence of a discernible pattern in the treatment of a particular group and of discrimination on grounds of race.

(ii) Whether the claimant's failure to be appointed to a Specialist Registrar Type 1 post and to be admitted to the Type 1 training programme in 1999, 2000, and 2001 should be admitted in accordance with the Anya principle (Anya v Oxford University [2001] IRLR 377 CA).

At the Case Management Discussion on 29 November 2004 it was directed that an agreed statement of facts should be lodged with the Office of the Industrial Tribunals and the Fair Employment Tribunal, 14 days before the hearing.

When the matter came before me, this had not in fact been done. I rose for a short period and a statement of agreed facts (now set out at Paragraph 4 below) was helpfully provided to the tribunal.

4.	(i)	The claimant was interviewed for the post of Specialist Registrar Type 1 on 6 March 2001.

	(ii)	He was interviewed by the Northern Ireland Medical and Dental Surgical Training interview panel. This panel is part of the Northern Ireland Post Graduate Council for Medical and Dental Education.

	(iii)	Admission to the SR Type 1 training scheme is a necessary step in progressing to appointment as a consultant.

	(iv)	The claimant's application in 2001 was unsuccessful.

	(v)	Following a short-listing exercise, 10 candidates, including the claimant, were interviewed.

	(vi)	The claimant was ranked fifth in order, but since only three posts were available he was not selected.

	(vii)	The interview panel consisted of 11 persons, of whom nine had voting rights.

	(viii)	The claimant had also applied for a Specialist Registrar Type 1 post on two earlier occasions, namely 1999 and 2000. On each of these occasions he was also unsuccessful.

	(ix)	All of the interview panel members were male, white, and from Northern Ireland.

	(x)	Three candidates were appointed all of whom were white and from Northern Ireland.

	(xi)	In the previous two exercises in 1999 and 2000, the first two unsuccessful candidates were placed on a reserve list. This did not happen in 2001.

	(xii)	Of the 11 panel members in 2001, 8 were involved in the 2000 exercise, and of these 8, 5 were involved in the 1999 exercise. Only 3 from the 2001 exercise were not involved in either the 1999 or 2000 exercises. (See : Chart at Appendix 'A'.)

At the hearing it appeared that there might still be a factual issue as to whether Doctor Pherwani had complained about the previous recruitment exercises or whether any other candidate had made a complaint. By agreement, the following matters were confirmed in correspondence exchanged between the parties and copied to the Office of the Tribunals:-

(i) The claimant did not complain following the recruitment exercises in either 1999 or 2000.

(ii) The Council received a letter from another candidate in the 2001 exercise. It was not a letter of formal complaint. The letter expressed the writer's disappointment at not being one of the successful candidates at interview, and also asked for the reasons for not being appointed.

In this exchange of correspondence between the representatives and the Office of the Tribunals, which closed on 10 May 2006, the parties both indicated to the tribunal that there remained no outstanding factual dispute which would require the hearing to be reconvened.

In this case, Doctor Pherwani alleges that he was treated less favourably than other white male candidates on racial grounds.

Case law provides guidance in relation to those matters which can be taken into account by a tribunal in determining whether a claimant has been a victim of unlawful discrimination. Tribunals are particularly enjoined to bear in mind that it is unusual to find direct evidence of discrimination. Those who discriminate on a proscribed ground do not generally admit to doing so. Often discrimination will not be deliberate but may be based on assumptions, conscious or unconscious, that someone would not have 'fitted in'. (See : Glasgow City Council v Zafar [1998] 2 All ER 953; Wallace v South Eastern Education and Library Board [1980] IRLR 193; King v Great Britain China Centre [1991] IRLR 513.)

The outcome of a discrimination complaint will therefore often depend on what inferences it is proper to draw from the findings of primary fact made by the tribunal.

In Chapman v Simon [1994] IRLR 273, at Paragraph 43, Peter Gibson LJ stated:-

" … [R]acial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are."

Additionally, when attempting to determine if the treatment of a complainant constitutes discrimination on a proscribed ground, it is important to have in mind that what ultimately turns out to be the case may frequently be more serious than would be the case if one were only to look at the discrete complaint.

It is therefore also proper in some circumstances to draw conclusions from all the evidence in considering whether or not to draw appropriate inferences. One can look not only at the incident forming the substantive complaint, but also at the surrounding circumstances including evidence relating to earlier and later incidents. It will only be by looking at the surrounding circumstances and previous history that racial factors influencing any decision may become apparent.

That this is so is clear from the decisions in:-

Anya v University of Oxford and Another [2001] IRLR 377;

Qureshi v Victoria University of Manchester [2001] ICR 863; and

Rihal v London Borough of Ealing [2004] IRLR 642.

In the first of these cases, Dr Anya, a black Nigerian, applied for a position as a post-doctoral research assistant. A white candidate, Dr L, was appointed after interview. The interview panel included Dr Anya's supervisor (Dr R) who had formed the opinion that Dr Anya was not suitable for the position, an opinion that he had shared with another member of the panel before the interview. The employment tribunal found that the university's equal opportunities and recruitment policies had not been followed in certain respects, but accepted that Dr Anya had been rejected because of perceived weaknesses in his field, as opposed to his race. The employment tribunal's decision was upheld by the Employment Appeal Tribunal but the Court of Appeal, pointing out that discrimination was rarely overt or deliberate, allowed a further appeal by Dr Anya.

Giving the decision of the Court, Sedley LJ stated, op cit p381 (para 11):-

"The present case is a textbook example of a race discrimination claim. It makes it possible to see with some clarity how the principles established by authority ought to work out in practice. Here we have a shortlist of two candidates, one black, one white, both by definition qualified by training and experience for a specialised post.

Whichever is to be chosen, good administration requires that he be chosen fairly; and to this the law has now added for a quarter of a century that the choice must not be affected in any way by his race. If it is, the unsuccessful candidate will have been treated less favourably on racial grounds, and the university will be liable for direct discrimination …………………..

Very little direct discrimination is today overt or even deliberate. What King and Qureshi tell tribunals … to look for, in order to give effect to the legislation, are indicators from before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias."

9.	(i)	In Qureshi v Victoria University of Manchester [2001] ICR 863 the claimant had brought two sets of proceedings alleging race discrimination and victimisation. In addition to hearing evidence relating to the specific complaints of discrimination set out in the originating claims, the tribunal heard evidence of various other incidents from 1988 onwards, which were relied upon by the claimant as evidence that the university had discriminated against him on the ground of his race. The tribunal, in reaching its conclusions, considered in respect of each allegation whether the respondents had treated Dr Qureshi less favourably. On behalf of the claimant, it was submitted that this approach was only appropriate in relation to the specific complaints made by him. The industrial tribunal, however, had made full findings of fact relating to each allegation, and gone on to consider these and then to decide whether any inference should be drawn from that particular allegation. Where the tribunal concluded that no inference could be drawn from the primary facts relating to that particular allegation it then did not carry forward those primary facts so as to consider whether an overall inference should be drawn from looking at them in total. This, it was submitted, had led to a 'fragmented' approach which failed to take account of the overall context of the complaints in the case.

	(ii)	The Employment Appeal Tribunal remitted the case to the employment tribunal. Giving its decision, Mummery J (as he then was) stated, op cit 874,875:-

"As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent or unintentional. The tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the tribunal of fact. How can it be kept within reasonable limits?

This case is an illustration of the problem. The complaint of race discrimination is usually sparked by a core concern of the applicant, in this case his failure to obtain support and recommendations for his promotion to a senior lecturer in the Faculty of Law. Dr Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained of. The circumstantial evidence included incidents ranging over a period of nearly six years, from 1988 to 1994. The incidents relied upon by him anti-date, accompany and postdate the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the tribunal to find the facts relating to those incidents.

They are facts (evidentiary facts) relied upon as relevant to a crucial fact in issue, namely whether the acts and decisions complained of in the proceedings were discriminatory 'on racial grounds'.

The function of the tribunal in relation to that evidence was therefore twofold : first, to establish what the facts were on the various incidents alleged by Dr Qureshi, and secondly whether the tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of."

He continued, at 875:-

"In the present case it was necessary for the tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the tribunal to find the primary facts about those allegations. It was not, however, necessary for the tribunal to ask itself, in relation to each incident or item, whether it was itself explicable on 'racial grounds' or other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decision complained of in the originating claims were on 'racial grounds'. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds."

10.	(i)	In Rihal v London Borough of Ealing [2004] IRLR 642 (Court of Appeal), the facts were briefly as follows: Mr Rihal was a Sikh, born in India. He was employed as a Senior Manager in the respondent council's housing department. He applied unsuccessfully for a number of senior management posts. An employment tribunal upheld Mr Rihal's claim that the employers had discriminated against him on racial grounds. It found that there was a 'glass ceiling' in the housing department. This made it very difficult for those who were not white to progress to senior management posts.

	(ii)	The council, appealing against the employment tribunal's decision, argued that it had adopted a too generous approach in drawing upon matters which were not the subject of a formal complaint in order to reach a conclusion about matters which were. Rejecting that argument the court stated, per Keene LJ at p648 (paras 30 – 32):-

"{T]he tribunal may have to look at various acts and at past acts to decide how the alleged discriminator would have acted in respect of [the comparator]. In short, it may have to look beyond the immediate circumstances of the incident about which complaint is made. Of course, the more dissimilar those other acts and events are from the circumstances of the incident complained of, the less evidential value they are likely to possess. Nevertheless what this demonstrates is that it will not always be right for a tribunal to confine such evidence of the wider picture to its consideration of the grounds on which the alleged discriminator acted … That wider evidence may also be of value in determining whether the complainant has been less favourably treated than another, not of his or her race, would have been

Moreover, where there are allegations of discrimination by an employer over a substantial period of time, it would be wrong for a tribunal to treat the individual incidents complained of in isolation from one another. That would be, to use Mummery J's words in Quershi a 'fragmented approach' and would overlook the relevance which the wider picture may have to the decisions to be reached on those individual complaints.

Consequently I do not accept the criticisms advanced on behalf of Ealing of the approach adopted by the tribunal in the present case. It was entitled to consider the wider picture in determining whether racial factors were involved in the treatment of Mr Rihal and to use its conclusions on that to inform its assessment of whether in respect of each of the complaints he had been less favourably treated than a white employee in the department in similar circumstances would have been."

As far as the instant case is concerned, I do not accept the respondent's counsel's submission that Anya and Rihal are distinguishable as having been largely decided on their own facts.

Here Doctor Pherwani complains of his non-appointment in 2001. He had previously been unsuccessful in similar circumstances in 2000 and 1999. Not only is there a closeness in time, but as is apparent from the agreed statement of facts there was a noticeable overlap in the composition of the respective appointment panels.

The members of these panels were all white and from Northern Ireland, characteristics that were replicated in the persons appointed.

Doctor Pherwani was ranked fifth in order of merit. There were three posts, so he was the second unsuccessful candidate. He was not, however, placed on a reserve list. This contrasted with the position in 1999 and 2000 when the first two unsuccessful candidates were placed as reserves.

All those factors may, and I stress may, be indicative of the existence of a 'glass ceiling' or institutional discrimination, albeit unintentional or inadvertent.

Ultimately it will be for the tribunal hearing this case to determine, after hearing the evidence, oral and documentary, finding the facts and drawing appropriate inferences from those facts, whether the claimant did suffer unlawful discrimination on the ground of his race. However, it seems to me that in order to fulfil this task, the tribunal requires to see the 'wider picture'. This is not outweighed by the fact that this may lengthen the proceedings and create practical difficulties.

Consequently, I answer the questions set out at Paragraph (2) above in the affirmative, and hold that this evidence should be admitted at the substantive hearing.

The parties will be given the opportunity to make representations as to whether or not it is appropriate that I should chair the substantive hearing.

Chairman:

Date and place of hearing: 9 February 2006, Belfast

Date decision recorded in register and issued to parties: