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Cite as: [1992] UKEAT 219_90_3107

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BAILII case number: [1992] UKEAT 219_90_3107

Appeal No. EAT/219/90

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 July 1992

Before

THE HONOURABLE MR JUSTICE HUTCHISON

MISS J W COLLERSON

MS D WARWICK

MR G DILLISTONE APPELLANT

LONDON BOROUGH OF LAMBETH RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR B WILTSHIRE

(OF COUNSEL)

Mr M P Lally

Director of Legal Services

London Borough of Lambeth

Lambeth Town Hall

Brixton Hill

London SW2 1RW

MR JUSTICE HUTCHISON: By this appeal, Mr Dillistone, the applicant before the Industrial Tribunal challenges their decision of 11 September 1989, that his complaints of unlawful sex and race discrimination failed and were dismissed. He claimed that he had been unlawfully discriminated against by the respondents, the London Borough of Lambeth on the grounds of sex and/or race when the Council failed to list him on a shortlist of candidates for a vacant post with the authority. That occurred in January 1989.

It is necessary to say a little bit about the background to the case in order that Mr Dillistone's stance should be properly understood and perhaps we might preface what we have to say about that by this comment: it is clear from the arguments which he has addressed to us - he being unrepresented on this appeal - that he has the strongest convictions as to the justice of his case. It is also clear, as will become apparent from some of the things that we have to say, that there are features of the case which make his attitude entirely understandable.

However, the question for this Court, of course, is whether it has been shown that the decision of the Industrial Tribunal was in error, i.e. that there was some error of law on their part in reaching the conclusion at which they arrived. This Court does not substitute its own views for the views of an Industrial Tribunal. It does not, in particular, make its own judgment as to the credibility of a witness whom the Industrial Tribunal has seen and heard and formed a view about. The right exists for this Court to interfere if the tribunal has accepted evidence which no tribunal properly directing itself could accept, but what this Court cannot do is to substitute its own views on credibility for those of the tribunal.

The facts are briefly as follows: Mr Dillistone was already employed by the respondent authority in late 1988, or early 1989. The authority advertised a post of senior training officer in relation to Community Charge matters and Mr Dillistone among others applied for that post. That involved his completing an application form and it is to be observed that one of the questions which all applicants were required to complete was headed in this manner:

"RACE Please indicate which of the following racial groups you belong to:"

There then followed in a box immediately underneath and to the left "Marital Status" and in a box to the right "Sex". Mr Dillistone completed the questions there set out by inserting these words:

"The concept of racial grouping serves to endorse divisions & is therefore irreconcilable with the spirit and tenets of Equal Opportunities, whose principles it negates. If information is sought for monitoring purposes, its place lies elsewhere."

In the "marital status" and "Sex" box he put:

"The questions of marital status, gender and age are similarly inappropriate if they are (as we hold them to be) irrelevant."

He did, however, complete particulars of his date of birth.

Appended to the application form is an averment by the authority in these terms:

"The Council is committed to an EQUAL OPPORTUNITIES POLICY in employment and will assess applicants for jobs without regard to disability, marital status, race or sex. Although this application form includes questions relating to these equal opportunity areas the information will be used solely for monitoring purposes."

The relevance of that will become apparent in a moment.

The Council did not short-list Mr Dillistone for the post and although it took a little time for him to discover this, he did eventually elicit from them that their professed reason for not doing so was the terms in which he had formulated in the answers which we have already rehearsed. The Council's stance was that the answers given indicated a non-acceptance by Mr Dillistone of the respondent authority's Equal Opportunities policy in particular their policy of monitoring those who applied to the Council for work. Their stance was that they saw monitoring as a necessary part of the implementation of their Equal Opportunities policy and that in view of the applicant's apparent lack of commitment to a policy of monitoring in that context, even though he might have had full commitment to the principles of Equal Opportunities, he could not operate effectively in the post for which he was applying.

Mr Dillistone, it has to be understood, contended and always has contended that that was a spurious excuse on the part of the Council for not short-listing him: that, in fact, the policy of the Lambeth Council in relation to employment is riddled with discriminatory concepts and that in practice he, a white male, stood no chance of obtaining this post which was pursuant to those policies destined to be given, as indeed, apparently it was, to someone who was black and female.

We hope that we have adequately rehearsed the basic contention that inspired Mr Dillistone in his actions and in bringing his claim. Having indicated the area of contest and adding, as we shall make clear one must add in a moment, that Mr Dillistone's claim - though based on the same facts comprised an assertion of victimisation by the Council against him on the grounds of race or sex, one has to try to see what it was that Mr Dillistone relied upon in support of his contention. There are two ways in which one might explain that. One, is by a detailed reference to a very large amount of documentation: the other, is by means of a summary. We propose to adopt the latter course more particularly because the documents are extremely voluminous and, no doubt through a lack of understanding on Mr Dillistone's part when preparing this appeal and the papers for it, he had not made it clear to all parties that the entire bundle of documents was going to be needed. We have not suffered a disadvantage because of that because we have one copy and Mr Wiltshire, on behalf of the respondent Council, was provided with a copy at the time the hearing began.

The summary can really be stated in this way. When the hearing was about to commence Mr Reynolds, an employee or representative of the Council who, in fact, appeared for them before the Industrial Tribunal, furnished to Mr Dillistone what purported to be the documentation evidencing the Council's policy on race relations and Equal Opportunities matters. Those are the documents to which we have referred.

It is clear, if one looks at those documents, that there is much material in them which can be legitimately used in support of the contention that the declared policy of the Council on Equal Opportunities - we use that as a compendious phrase - is one which is discriminatory in favour of women and persons who are not white. It is unnecessary, having made that statement, to look at the details. We shall content ourselves with a reference, by way of example, to a single document that is a policy statement dated October 1980, which in paragraph (b) on page 79 contains this statement apropos shortlisting:

"Every effort is to made to interview suitably qualified black candidates and black candidates with proven aptitude for vacant posts. An applicant's blackness should now always be considered an asset in the selection process. This should not be misconstrued as reverse discrimination ; it is unlawful to discriminate against a person on grounds of race, colour, etc. What it means is that the selection process must now regard suitably qualified black applicants (as well as women and disabled people) much more positively that before in view of the Council's equal opportunities and race relations commitments."

While if it were material to argue the matter it could be contended that the latter part of that paragraph explains and mitigates the apparently damaging meaning of the first part, equally an argument in support of Mr Dillistone's contention, based in particular on the second sentence, is not difficult to formulate. There are other documents which could be used to the same effect and, indeed, as will become clear, the tribunal expressed some criticism of the Council in relation to the documentation bearing on to their Equal Opportunities policy.

The essential issue in the case - whether one looks at it as a matter of sex or race discrimination or victimisation - was why Mr Dillistone had not been shortlisted. The way in which the hearing proceeded was, so far as the respondents were concerned, by Mr Clark, the Group Manager for Recruitment and Information, and Mrs Gillian Webb, the Principal Personnel and Training Officer and Directorate of Finance, giving evidence and being questioned and cross-examined on the matter of the Council's policy in this regard.

Mr Clark, and we content ourselves with a few quotations from his evidence, said, among other things, this:

"[The] Panel did not take into account race/gender in short-listing: I wasn't really aware of the differences in race/gender until later."

He, it has to be said was on the panel which determined shortlisting.

" Race/sex not factor in short-listing or appointment - the best candidate is appointed.

All applicants in this case dealt with in same way. In past panel has not short-listed black people who have indicated on application form disagreement with Council's policy on race relations.

If any applicant had said what this applicant did on his form I wouldn't have recommended short-listing."

He was then, as one would expect, cross-examined by Mr Dillistone in relation to the inconsistencies between that professed approach and various documents of which we have quoted but one sample and he said such things as this. He was asked about a 1981 document and apparently damaging contents and he said:

"This was a 1981 document - we've moved on in some areas since then."

He looked at another document - in fact the very document which we have specifically cited - and said:

"I see A1/79(b): first two lines" - that is "every effort is to be made to interview

suitably qualified black candidates and black candidates with proven aptitude for vacant posts" -"are present Council policy - I didn't regard the rest as present Council policy."

Later on he said:

"I would say document is out of date - produced in 1981. Then Council had less than 6% black staff hence effort to make people aware of that situation - statement should be seen in that light."

Towards the end of his cross-examination he said this:

" Application form provides necessary information for short-list, not appointment. A1/208 means that is aspects of criteria not clear from application form they can be dealt with at interview. Council openly says that main discrimination is faced by women and blacks. That is why need felt to specify as it did in A1/208.

The addition does not say that if in doubt throw in race/gender in the balance in short-listing: it is drawing attention to stop recruiters acting on the basis of assumptions. On short-listing I must follow Council's policies. I am bound by R1/189." (That is another statement of policy.)

Just pausing there, while Mr Dillistone legitimately relies on that last answer for the purposes of suggesting that Mr Clarke was there agreeing that the documents still represented the policy, it is perfectly clear from some of his earlier answers that it is not to be strictly interpreted in that way because he was, in at least two or three places which we have quoted, saying that the documents did not represent current Council policy.

Turning to Mrs Webb, it is unnecessary to quote her evidence on the same topic in any detail. She too was cross examined at some considerable length on the damaging documentary references and she made it clear that they did not represent her appreciation of current Council policy or what was taught to those charged with recruitment, interviewing, short-listing and matters of that sort. She also made it clear, as did Mr Clarke, that the sole reason for the decision not to short-list Mr Dillistone was the terms in which he had answered the questions and the fact that the Council concluded that having, as they did, a policy of open monitoring this indicated that Mr Dillistone was somebody who would not be able to fit in with and administer Council policy in that regard.

That is the evidence that was before the tribunal. It is clear on the one hand that there was much in the documents to support Mr Dillistone's case that the Council was still wedded to a discriminatory policy, but, on the other hand, there was the evidence that the documents no longer represented current policy and that the sole reason for the non-inclusion of Mr Dillistone on the short-list was that which we have rehearsed a moment ago.

Against that background one has to see what the tribunal decided. They stated in paragraph 6 of their reasons that they had given full consideration to the relevant provisions of the two Acts i.e. Sections 1, 2 & 4 of the Race Relations Act 1976 and Sections 1, 4 & 6 of the Sex Discrimination Act. They directed themselves in accordance with the guidance to be derived from the case of Noone v North West Thames Regional Health Authority [1988] IRLR 195, and they cited the well known passage from the Judgment of May LJ which they set out, and which we need not pause to read, at the top of page 3 of their decision.

They then said: (in our judgment entirely correctly)

"7 It is thus for us to decide:-

(a)whether there was discrimination against the applicant, in the sense that he was less favourably treated by the respondent than a person not of his sex and/or race either was or would have been treated.

(b)whether there was a difference of race and/or sex, and

(c)whether the respondent had inadequately or unsatisfactorily explained any such discrimination as there was.

It is unarguable in this case that the applicant was less favourably treated than the successful candidate for the post for which the applicant applied. The successful applicant was female and black; the applicant who was unsuccessful was white and male. We are therefore concerned so far as this case is concerned with sub-paragraph (c) of the matters to which we have referred above. We must therefore look to see whether the employer has satisfied us that the non-selection of this applicant in January 1989 to be on the shortlist of applicants for the vacant post was for good and logical reasons so that we are thereby prevented from making the inference which the Court of Appeal says in commonsense we otherwise should.

8 What is at the root of this applicant's complaint is that a desire to redress the disadvantage groups in society has gone too far and has in fact resulted in ..."

- what we shall call "reverse discrimination" -

"........... discrimination against, in particular, white male candidates. ............ The respondent's witnesses denied that that was so; they agreed that there was positive encouragement to certain, principally black and female, groups to apply for employment, but said that once the shortlisting stage had been reached, all were treated equally."

They then proceed to their assessment of the evidence and they say this:

"The respondent authority's witness, Mr Clark, maintained that it was the applicant's answer on his application form which caused his non-selection to the short list and that his race and sex had no part to play. That evidence was repeated by Mrs Webb a senior personnel officer and she asked us to accept that Council policy documents now some 8/9 years old which might at face value be argued to have contained unwise expressions of Council equal opportunity policy should not be read in that way since times had moved on and the Council and her department in particular (whatever may have been the position in the past) now operate equal opportunity policies fully in accordance with the spirit and letter of anti-discrimination legislation."

Pausing there, it seems to us that not only had the tribunal directed themselves impeccably in law but they had accurately, though briefly, summarised the effect of the evidence given on behalf of the respondents and of the contention made by Mr Dillistone as underlying his various complaints. They had not, it has to be said, referred specifically to the question of victimisation but one notices that neither in the Notes of Evidence nor in the brief note of final submissions was the question of victimisation raised as a separate head; and while we appreciate the point that was made by Mr Dillistone as to the differences in requirements in establishing victimisation, we consider that the outcome of his case, put in that way, depends upon the resolution of precisely the same question as depends the case on discrimination on grounds of sex or race in the matter of employment.

Section 2 of the Race Relations Act refers to discrimination by victimisation in these terms. It involves someone who treats the person victimised less favourably:

"....and does so by reason that the person victimised has-

(a)brought proceedings....

(b)given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c)otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d)alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act"

(c) and (d) certainly could, on the basis of the case advanced by Mr Dillistone, be relevant but in the end whether that case was established depended on a resolution of the question: why was he not short-listed? Was it by reason of a desire to victimise him for the answers he had given on the form and the attitude he had displayed and the implicit or explicit contention that the Council were guilty of discriminatory conduct contrary to the Act, or was it for the reason that they had given in the evidence of Mr Clark and Mrs Webb?

We then come to paragraph 10 of the decision which is plainly crucial and which we must read in full. The Industrial Tribunal said this:

"We should comment that the respondent authority made difficulties for itself by failing clearly to document policy developments. Indeed if this case had depended upon the applicant's failure to be shortlisted without the coincident presence of the offending answer on the application form, the Council might well have found itself in further difficulty before us. However that is not so: the applicant made the answer which he did and we accept that that answer could reasonably be said to have revealed to those tasked with shortlisting a divergence from Council policies which they saw as important in the context of the post concerned."

Pausing there, it will be apparent that the Industrial Tribunal very much "took on board" - if we may use that colloquialism - the criticisms that were made of the documentary evidence purporting to disclose the Council's policy on these matters and further that they accepted that in different circumstances Mr Dillistone, the applicant, might have had a case in respect of the way he was treated. However, they rightly point out that this case has the added factor of the answers which he gave and the conclusion is reached, a conclusion they were plainly entitled to reach, that it could reasonably be said that that answer revealed to the persons charged with making up the short list, a divergence from Council policy which was important in the context of the post concerned. They go on:

"It is not for us to judge whether the respondent is right in its reliance upon that particular policy as an effective tool to ensure that all before it are treated equally, (as long as the existence of that policy does not - as it does not in our finding - lead us to make the required inference in the applicant's favour) - it is for us to say whether the applicant has proved that he was not shortlisted because of his race and/or sex."

They were there, as it seems to us, correctly directing themselves that it was not for them to judge the correctness of the policy in relation to open monitoring, to which the Council were wedded, provided only that the existence of the policy did not lead to the inference referred to by May LJ in the authority cited. They were addressing what was the critical question which was whether the applicant had established that it was not for the Council's professed reason but for reasons of race and/or sex that he had not been shortlisted. They continue:

"We are bound to say that the applicant has failed to prove those allegations; we conclude that the applicant was treated as he was because he manifested on his application form objection to the Council's chosen method of implementation of its policies on equal opportunities and we find also that anyone who had so objected would have been similarly treated, of whatever race or sex had he or she been. There is no basis therefore in our finding for saying that this applicant was unlawfully discriminated against either on the ground of his race or sex. We therefore unanimously concluded that the applicant's Originating Application should be dismissed."

For reasons which we have already explained, the reasoning of that conclusion applies with equal force to the alternative claim, which is not specifically mentioned, of victimisation.

In seeking to attack the Industrial Tribunal's contention the applicant, first of all referring to his notice of appeal, contends that the Industrial Tribunal erred in failing to apply two points of law which he requested them to do. He adds to that a claim of bias, or procedural impropriety in relation of the presence on the Industrial Tribunal of one member, Mr Greaves, who he suggests should have disclosed an interest - we shall come to that as a separate point.

As to his points of law, the first point deployed in the notice is that it is said that the Council's witness, Mr Clark, agreed in evidence that had Mr Dillistone been a black female applicant who had answered the question in the same terms as Mr Dillistone an approach would have been made to seek clarification. No approach was made to seek clarification from Mr Dillistone who, of course, by reason of being employed by the Council was known to them; and accordingly there was discrimination against him on grounds of race and/or sex but, he contends in his grounds of appeal, the Industrial Tribunal ignored this.

The short answer to that is that the careful notes of the Chairman, which are before us, do not disclose that Mr Clark said any such thing. There is no evidence to suggest that he did although Mr Dillistone asserts it. It seems to us, if we may say so, inherently improbable that he would say such a thing because by definition a black female applicant who had completed the form in the same manner as Mr Dillistone would, as a matter of probability, not be known by the Council either to be black or to be female.

The second point that he takes in his written grounds of appeal is the one in relation to victimisation and we have already adequately dealt with that. However, when he came to deploy his arguments before us, Mr Dillistone put the matter in a slightly different way. He emphasised that there were underlying his arguments three essential points. The first was that he was discriminated against because he was not included on the short list; the second was the point about victimisation and the third, and this is what has been involved in all his forceful arguments addressed to us, that within the Lambeth Council there existed a settled policy of discrimination which ensured that he was predestined not to get this job in any event because as a white male he was, for practical purposes, disqualified from consideration.

He advanced that argument in a number of different ways. He was good enough to provide us with a long written summary of his submissions, which we think we have all found helpful, and to which we do not propose to refer in detail. The thrust of that argument is really twofold. First of all, it is said that the Council's written policy, which is disclosed in the documents, is up to date and has not been superseded by a more enlightened and proper approach; and the second it is argued that the evidence of Mr Clark and Mrs Webb is inconsistent, the one with the other, and is evidence which no reasonable tribunal properly directing itself could accept. In other words, he mounts a charge of perversity against the tribunal in the matter of accepting the evidence of Mr Clark and in particular, Mrs Webb (who, he emphasises, unlike Mr Clark, had nothing to do with the actual process of shortlisting).

We have to say that, as appears from the clear and cogent reasons given by the tribunal, the question whether the Council did or did not have an illegitimate policy on equal opportunities matters is not of direct relevance to the issue in this case. The issue in this case was whether Mr Dillistone had been omitted from the short list for the reason given by the Council. It is quite clear that had the tribunal concluded that that was not the case and that some other reason existed they would have inferred that it was a reason amounting to discrimination.

Of course, the question of policy and the relationship between current policy and the documents was of relevance in this sense: that on the principal issue the credit of Mr Clark and Mrs Webb was very much in issue and if the tribunal had taken the view that it was demonstrated that they were not worthy of credit in the matter of changes of policy that would, no doubt, have had a substantial effect upon the view the tribunal took of the truth of their evidence as to the reasons why Mr Dillistone was omitted from the shortlist. So, the matter is relevant but not of central relevance. That is not to say that it is not of importance but that it was not the decisive issue in the case.

Be that as it may, the tribunal plainly felt able to accept the evidence of Mr Clark and Mrs Webb on these matters. We ask ourselves whether it was open to the tribunal to reach that conclusion. As we have already made clear, there were powerful points that Mr Dillistone could and did make on the documents. He made them before the tribunal: he made them, we suspect, even more forcefully before us. However, the fact that there are powerful points does not mean that one should reach a conclusion that there was no basis for holding that the truth of the matter was as the witness asserted.

The tribunal had the advantage of seeing Mr Clark and Mrs Webb and assessing their credibility as witnesses. They plainly, as the introductory portion of paragraph 10 shows, gave full weight to the problems which the documents posed for the Council but they concluded that they could accept the veracity of those two witness on the crucial issue in the case: what was the reason for the failure to include Mr Dillistone in the shortlist? Inferentially, they accepted that the Council witnesses were telling the truth when they said that policy on these matters had moved on and for the better in the interim since the documents had come into existence.

They might have reached a different conclusion. Another tribunal might have taken the opposite view. If it were open to this Court, we might take the opposite view - though in saying that we do not hint at any views of our own, since we do not have and would not be justified in expressing such views. We make those observations merely to emphasise the fact that because two views are possible, that is not a ground for allowing an appeal and rejecting and categorising as "unreasonable" the view at which the tribunal arrived.

The sort of test, as is well known, that has to be satisfied for such a finding is that one should look at the conclusion and exclaim, in the words of May LJ in one of the decided cases, "My goodness, that can't be right". We look at the Industrial Tribunal's conclusion here and ask ourselves whether we come anywhere near to uttering such an exclamation and without hesitation we answer that we do not. This is a view which the tribunal were entitled to arrive at and having arrived at it, it disposes essentially of all the ways in which this case can be put by Mr Dillistone.

There is a finding of fact that he was rejected on a not unreasonable ground. The conclusion of the Council was that he was somebody who by his answer had evidenced a divergence from their policies which made him someone unsuitable for the post concerned. That, on the principal grounds in this appeal, is really sufficient to dispose of it and further elaboration would not serve to illuminate the point further.

We turn, therefore, to the matter of Mr Greaves. The argument advanced by the appellant in relation to Mr Greaves is as follows. He said this in his notice of appeal:

"I also wish to complain that it was never disclosed that one of the Tribunal member, Mr Greaves, worked for LBL [London Borough of Lambeth] and I was thus prevented from challenging his impartiality."

At the end of his notice of appeal he says:

"Please also consider the matter of Mr Greaves and the fact that relevant information about him was not disclosed. Please consider that compromised impartiality may facilitate (however sub-consciously) the neglect of crucial decision making factors and produce a tendency to believe anything LBL said, however implausible."

Just pausing there, it goes without saying that if Mr Greaves had in fact been employed by the London Borough of Lambeth and had failed to disclose that fact, that would be a ground for this tribunal to allow the appeal and to remit the matter for rehearing. For reasons which are too well known and obvious to need exposition, one cannot permit someone who has an interest of that sort to sit in judgment without, at any rate, disclosing his interest and obtaining the consent of the parties for him to do so.

As is customary when such an allegation is made, the Employment Appeal Tribunal set about investigating the matter and made enquiries of the Chairman and of Mr Greaves himself. There appears in the bundle a letter dated 15 March 1990, from the Registrar to Mr Dillistone which says this:

"We understand that Mr Greaves has never been employed by the London Borough of Lambeth. He worked in Lambeth for a number of years for the Council for Community Relations in Lambeth (CRRL). This was a voluntary body which received resources for its work from the Commission for Racial Equality, the Borough of Lambeth, the DOE, the Home office and various charities. The organisation went into voluntary liquidation in 1986.- we emphasise the date -His salary was in the form of grant-aid from the Commission for Racial Equality." - we emphasise the source of his salary.

There is also a letter from Mr Greaves himself to the Assistant Secretary of Tribunals commenting on the assertion in the grounds of appeal. He points out his involvement with the Council for Community Relations in Lambeth; he points out the fact that he was for many years a magistrate who sat on the Inner London Juvenile Bench - the inference being that he might be supposed, as one would imagine is the case, to have a good appreciation of the basic concepts of natural justice - and in general he refutes, with appropriate emphasis, the suggestion that he was likely to be anything but impartial or the contention that he should have made any disclosure.

It seems to us, as we endeavoured to convey to Mr Dillistone when, at the end of his argument he embraced again this particular point, that it is really quite impossible to mount a sensible argument that Mr Greaves was somebody whose independence was, or could be seen to be, in any way compromised. Apart from anything else the body to which he had belonged, which was not a creature of the Council, which did not depend solely on the Council for funds and which did not pay Mr Greaves, had ceased to exist in 1986 some three years before the events with which we are concerned. We unhesitatingly conclude that that, as it were, subsidiary point is entirely without foundation.

Accordingly, and for those reasons, we have reached the conclusion that no grounds exist in law for interfering with the decision of the tribunal. It appears to us to be a decision in which they directed themselves impeccably, expressed their conclusions clearly and reached a result that was certainly not one which is open to attack. The appeal will be dismissed.