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Cite as: [1992] UKEAT 271_90_1903

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BAILII case number: [1992] UKEAT 271_90_1903

Appeal No. EAT/271/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 19th March 1992

Before

THE HONOURABLE MR JUSTICE KNOX

MR T S BATHO

MR J D DALY

MR N BUKHARI APPELLANT

COMMISSIONERS OF CUSTOM & EXCISE RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR S MUNASINGHE

(Of Counsel)

Messrs Robin Thompson & Partners

Compass House

Pynnacles Close

Stanmore

Middlesex

HA7 4XL

For the Respondents MR F PHILLIMORE

(Of Counsel)

Solicitors Office

HM Customs & Excise

New King's Beam House

22 Upper Ground

London

SE1 9PJ

MR JUSTICE KNOX: This is an Appeal by Mr Bukhari from a Decision of the Industrial Tribunal sitting at London (South) on the 8th January and the 26th, 27th and 28th March 1990.

The Decision was sent to the parties on the 10th April 1990. It is quite an extensive document, the Full Reasons running to just over fifteen pages. The unanimous Decision of the Industrial Tribunal was that Mr Bukhari's complaint that the Respondents unlawfully discriminated against him on racial grounds, failed.

The Respondents were Mrs N A Withers and Mr F Carpenter who were Mr Bukhari's superior officers, all three of them being employees of the Commissioners of Customs & Excise.

Mr Bukhari is a man with long and, in many respects, very creditable service in the Civil Service. He joined as long ago as June 1966 and started with the Inland Revenue transferring to the Customs & Excise in August 1972, was promoted from Executive Officer to Higher Executive Officer in February 1975 and was transferred to the office, where the events with which these proceedings are concerned occurred in May 1986, which was the Croydon VAT Office of the Customs & Excise.

It was accepted both before us and, at the end of the day, before the Industrial Tribunal that there had been at earlier stages in Mr Bukhari's career some criticism of his management abilities as opposed to his other qualifications and qualities. The Industrial Tribunal recorded at an early stage in its Decision that Mr Bukhari had distinguished academic professional qualifications and specified what they were and that he was an intelligent and conscientious Civil Servant. The criticisms that were, at an early stage and indeed subsequently, levelled at him in the context of possible promotion to higher grades were limited to his ability to manage staff below him.

He became the Supervising Officer in charge of a newly combined administration and public enquiries department at the Croydon LVO in March 1988. At that stage his superiors were the surveyor, a Mr White and an assistant collector, Mr Carpenter. Mr White conducted the appraisals that are done by a the superior officer in the Civil Service. This is done, it was explained to the Industrial Tribunal and indeed by Counsel for Mr Bukhari to us, in two stages. There are mini-appraisals which are intended to give an opportunity for a member of staff whose performance is being assessed to know what the criticisms potentially are of his performance and correspondingly, of course to rectify any faults that are identified and recognised and accepted as existing. That is a preliminary stage to the second stage the Annual Report which occurs later after the mini-appraisal has been digested and perhaps acted upon.

In this case there was such a mini-appraisal in September of 1988 by Mr White. Some criticisms were made of Mr Bukhari's staff handling capabilities but it was emphasised to us that at that stage there was no criticism of conduct by Mr Bukhari that could be regarded as discriminatory in a sex context.

Mr White left this particular office in October. His position was taken by Mrs Withers, as the Surveyor and therefore the superior of Mr Bukhari, but Mr White continued to deal with the report on Mr Bukhari for the year ending 31st October 1988 and gave him what are described technically as "two box 4 markings". That is a box which is available for ticking which indicates a level of performance which is, as the number 4 suggests, not at the top of the list. There are, in fact, 5 boxes which can be ticked in the alternative, 4 is described as "performance not fully up to requirements, some improvements necessary" and the bottom of the scale is 5 "unacceptable".

The matter which triggered this application to the Tribunal was an interview that Mrs Withers had with Mr Bukhari on the 17th January 1989. She had, as I have already mentioned, taken over from Mr White on the 10th October 1988 and so was some 3 months into the position. One of the subjects of that interview was the reports that Mr Bukhari had played a part in making, of three employees below him. They are identified in the Industrial Tribunal's Decision by letter so as to preserve their anonymity and we will use the same letters. Two of the ladies concerned, the vast majority of employees in this particular department being female, were white European and in their twenties, and the reports that Mr Bukhari made in respect of those two ladies were of a critical nature. The third report which was the subject matter of mention, was one on the lady who is identified as "CD" who was of Asian origin and known to have made an arranged marriage, and that report as made by Mr Bukhari was in laudatory terms. It is fair to say that those terms were also concurred in by other people who subscribed to the report.

On the occasion of this interview in 17th January 1989 a question was raised by Mrs Withers as to whether there was some unfairness in the way in which these reports were prepared. The evidence regarding the appraisal meeting on 17th January was recorded by the Industrial Tribunal as being "in conflict" and on that score they saw both Mrs Withers and Mr Bukhari as witnesses and preferred the evidence of Mrs Withers. They also accepted that the note that she made was one which was made shortly afterwards and they found that it was an accurate record of the substance of her remarks. The meeting was a long one, it lasted 2¹/₄ hours.

The passage which is central to the appeal before us, and indeed was in the hearing before the Industrial Tribunal is quoted in full by the Industrial Tribunal and it will bear repetition, this is the quotation from Mrs Withers report:

"I asked [I of course is Mrs Withers] if he discriminated against women on his section and in particular towards European/English women. He emphatically denied any discrimination. We discussed this topic at some considerable length. It had been reported to me that there had been problems in the past with women serving on the section and since my arrival there had been the dispute over Miss AB's (AA) staff report where both the reporting officer and the officer herself and indeed my own observation suggested an unfair promotability marking and comment by Mr Bukhari. By comparison, Mrs CD's report (AA) prepared at about the same time where his comments were rather glowing, was in both my and the Head of Office's opinion somewhat overstated. More recently however I had accepted Miss EF's report as accurate and fair, though the lower ratings were queried with me by the Assistant Collector. It was rather unfortunate as far as the mini-appraisal was concerned that Mr Bukhari's exception to my asking about any discrimination dominated the interview and some acrimony resulted.

I had told him that I regarded his work as reliable and that I found him very conscientious and most hardworking. My reason for raising the topic of any discrimination was borne of a genuine intention to identify any problems in the management field which would affect any hope of advancement and to be fair to female staff working under him. Mr Bukhari is totally clear in his mind that there is no problem in this area as far as he is concerned..."

and that is the end of that quotation from Mrs Withers' report. The note of the report was, in fact, supplied to Mr Bukhari.

There was then a complaint made by Miss EF the third of the three ladies and the second of the European ladies, to Mrs Withers the details of which it is not necessary for the purposes of this Appeal to set out. As a result of that complaint which was made on the 30th January 1989, Mrs Withers forwarded the letter that Miss EF brought with her, to her superior Mr Carpenter together with a memorandum which was dated 17th February 1989 and which contains what can fairly be described as a "sheet anchor" for Mr Bukhari's appeal to this Tribunal.

This memorandum of Mrs Withers was only seen by Mr Bukhari as a result of the process of discovery. Unlike the report by Mrs Withers of the meeting on the 17th January 1989, a copy was not sent to Mr Bukhari straight away. What Mrs Withers said in her memorandum to Mr Carpenter was this:

"We are both well aware of the problems with Mr Bukhari's management of this Section, particularly in relation to the mid 20's/30's females and we have sought to discuss the problems with Mr Bukhari. He as you know refuses to accept from either of us and indeed from my predecessor, that there is any management problem and is instantly onto the ground of accusing us of discrimination etc.

He is a devout and practising Muslim. I believe the problem lies in his perception of the young women on his Section as totally contrary to the teachings and upbringing in his culture and faith, in which women are a) secondary to men b) should adhere to strict moral codes and c) should not `flaunt' themselves. His attitude to a young Hindu female, on the Section, who is subdued and has an arranged marriage by her parents for instance, is quite markedly different to the English young women, two of whom are living with their boyfriends and are popular generally with their male (and female) colleagues, one of these is Miss EF. With older married women there appears to be no problem.

I have not shown Mr Bukhari the note dated 30/1/89 from Miss EF, nor sought to further discuss the management of the Section with him at this time, since you are undertaking personally a full inspection of him currently, embracing this aspect and I feel it will only result in yet another accusation of discrimination and a total refusal to accept there is any problem."

There were in fact two inspections of Mr Bukhari's Section, one by Mrs Withers herself in which it was pointed out to us by Mr Munasinghe, she wrote in a commendatory tone regarding staff relations in that Section. That was between the 24th and the 27th February and the other by Mr Carpenter who carried out an inspection on the 9th and 10th February in which the only reference to staff management was a quotation from what Mr Bukhari had said to Mr Carpenter, as Mr Carpenter explained to the Industrial Tribunal, rather than an expression of Mr Carpenter's views, but what Mr Bukhari said was:

"with Administration he took over an area of responsibility which was fragmented and one which he has now succeeded in drawing together and inculcating a team spirit, with the staff now prepared to work together for the section as a whole rather than for individual components of it."

The Industrial Tribunal found, that following receipt of Mrs Withers' memorandum Mr Carpenter decided on the 31st March 1989 to transfer Mr Bukhari from the Administration and Enquiries Section to another Section which was the VAT Control District and it is clear that there was no staff responsibility in that new post. Mr Carpenter's evidence to the Industrial Tribunal was that his decision to move Mr Bukhari to VAT Control was:

"basically because I was unhappy at the way things were going on in the Administration Sections. Reports that there was an unhappy atmosphere were received from members of the staff and I thought it better for the smooth operation of the office and the people involved, including Mr Bukhari, to put him in an area where he was competent to do the job."

That decision to move Mr Bukhari was taken on the 31st March and in fact Mr Bukhari made his move on the 22nd April 1989.

That is the factual background to the complaint of discrimination contrary to the Race Relations Act that Mr Bukhari brought by his Originating Application. That was received on the 13th April 1989 and was therefore clearly in time.

The Industrial Tribunal made its Decision unanimously and the Appeal before us has been advanced on two separate grounds. One concerned the conduct of the hearing before the Industrial Tribunal. In the Notice of Appeal, in paragraph 8, it is claimed as follows:

"In investigating the said complaint of the Appellant the Tribunal assumed an inquisitorial role which manifested itself during the proceedings in the following, amongst other, ways.

At the end of cross-examination of each of the Respondents' witnesses the Chairman asked leading questions and obtained answers from them to effectively nullify the Plaintiff's case.

9. The aforesaid approach to the proceedings in a situation where the Respondents were more than adequately represented by legal representatives, was unfair to the Appellant and in any event contrary to the generally accepted approach of the adversarial role.

10. It is submitted that the attitude of the Chairman and the members of the Tribunals in conducting the hearing was such that the Appellant was left with grave doubts as to its impartiality and as to whether justice was seen to be done."

In such cases it is of the greatest importance that a Tribunal such as this, faced with an allegation of bias in the conduct of the proceedings below, should have precise allegations and evidence in support on those precise allegations. A generalised complaint such as is contained in that Notice of Appeal is hopelessly inadequate to enable an appellate tribunal to assess whether "Aye or Nay" there has indeed been bias in the conduct of the proceedings below. It is for that reason that the Practice Direction issued by this Tribunal at paragraph 12 in sub paragraphs (a) and (c) says this:

"(a) The appeal tribunal will not normally consider complaints of bias or of the conduct of an industrial tribunal unless full and sufficient particulars are set out in the grounds of appeal.

(b) In any such case the registrar may inquire of the party making the complaint whether it is the intention to proceed with the complaint in which case the registrar will give appropriate directions for the hearing.

(c) Such directions may include the filing of affidavits dealing with the matters upon the basis of which the complaint is made or for the giving of further particulars of the complaint on which the party will seek to rely."

Some attempt was made to comply with that procedure, no doubt as a result of what the Registrar said, and Mr Bukhari swore an Affidavit on the 26th July 1990 which it is not necessary for us to read, because he recognised on the basis of advice that was subsequently tendered to him, that that Affidavit did not address the points in those paragraphs in the Notice of Appeal which I have read numbered 8-10. Correspondingly when that Affidavit was submitted to the Chairman for his comments he concluded that there were no observations that he could usefully make that would assist this Tribunal.

Mr Bukhari was then advised no doubt, to try again and he produced another Affidavit, sworn on the 2nd January 1991, in which he did go some way towards giving the necessary particulars. But he did continue with his general allegations and they, I repeat, are of little, if any, assistance to an Appellate Tribunal in assessing whether or not the complaint is well founded. For example, Mr Bukhari says in his second Affidavit:

"I would give notice that my general complaint is that the said Industrial Tribunal and in particular its chairman appeared to be biased against me in the way the hearing was conducted."

and again, in repetition of what was said in the Notice of Appeal:

"the learned Chairman put questions of a leading character to the witnesses the result of which was to fill gaps in the Respondents' case."

After those general allegations, one does at long last, come to a specific one. In paragraph 5 it is said:

"the learned Chairman asked of Mrs Withers whether the inquiries she was making in regard to a complaint made against me by a female employee were directed at establishing whether or not it amounted to a possible sex discrimination."

Again, 6 is specific, it reads as follows:

"Having obtained the answer in the affirmative [that must be to that previous question] he was seen to observe, sotto voce, words to the effect that all Mrs Withers did was to investigate a possible sex discriminatory conduct on my part which led her to be accused of an allegation of `monstrous race discrimination'."

There then follows another general allegation in the following terms:

"The general attitude was that the issue of racial discrimination against me, despite evidence of strong racial stereotyping was not given proper consideration a fact which was borne out by the extreme quickness in which the Tribunal reached their decision."

and finally another generality:

"The learned Chairman's undue entry into the arena of proceedings of an adversarial nature caused much concern in my team, and in particular my Counsel, who at one stage remarked to the Chairman that perhaps justice was not seen to be done.

The learned Chairman responded to this remark to the effect that notice was taken of the criticism."

In dealing with this allegation of bias and in the conduct of the Industrial Tribunal proceedings we are, by virtue of the Practice requirements, effectively limited to the specific rather than the general complaints. On those specific complaints we have the following other material before us.

First of all the Chairman has commented in both cases by emphatically rejecting, or denying what is alleged by Mr Bukhari. In relation to the exchange that is said to have taken place between the Chairman and Mr Bukhari's Counsel, Mr Munasinghe, the Chairman says:

"I emphatically reject the suggestion that Mr Munasinghe remarked that `perhaps justice was not seen to be done' and that I responded by remarking that notice had been taken of his criticism."

In relation to the other specific allegation, the Chairman says:

"I emphatically deny that I made a sotto voce observation in the terms suggested in paragraph 6 of the affidavit. It is not my practice to make sotto voce observations to the Members during the course of a hearing, but subsequently to undertake a mutual discussion of the impression of the evidence given by witnesses."

On the other hand it is fair to observe that the Respondents have only put in an answer, dated 21st August 1990, to the Notice of Appeal which is before that latter Affidavit was sworn and therefore, necessarily, does not deal in terms with that Affidavit. But, what the Respondents say in their answer to the Appeal is that, nothing in the first Affidavit of Mr Bukhari addressed the complaints in paragraphs 8-10 of the Notice of Appeal and the Respondent contends that the hearing was properly conducted and there is no substance to the complaints in paragraphs 8-10 of the Notice of Appeal. So that there is, although not on oath, a challenge to the accuracy of those complaints in the Notice of Appeal. An equally unsatisfactory feature is that unfortunately the notes of the learned Chairman have gone astray and we have not been provided with them because they cannot be found, so that we have a significantly less than ideal situation from which to judge the complaint of bias and an unfair hearing. Nevertheless, it seems to us, beyond doubt that the specific allegations that are made, which I have read out in full, fall very far short of constituting the sort of criticism that would justify allowing an appeal.

One can get a flavour of the substance of the allegations from the complaint that the extreme quickness in which the Tribunal reached its Decision was some indication of an unfair hearing. What actually happened, we are told in argument, was that the Tribunal took half an hour after the close of the proceedings in which to announce their Decision, not of course in which to give their Full Reasons, which followed in full and in detail some two or three weeks later. In our view at the end of a hearing that has lasted over four days, including two days immediately preceding the last day, to suggest that a pause of half an hour before announcing a unanimous decision is an indication of an unfair hearing is fanciful to put it no higher. It must be of the most frequent occurrence for Courts to be faced with extended hearings over a period of days during the course of which opinions will be formed and for the ultimate process in deciding which way the decision will go, to take a relatively short space of time without there being any shadow of a question of an unfair hearing. To that extent we regard that ground in the Notice of Appeal not only as being in itself lacking in substance but in some respects as indicating the weakness of the allegation generally. More specifically the two points that are relied upon, namely, the sotto voce observation "that all that Mrs Withers did was to investigate a possible sex discriminatory conduct on Mr Bukhari's part" is not, if one looks at it at all carefully, a particularly impressive allegation in the Affidavit. It will be recalled that what was said was that the Chairman was seen to observe sotto voce certain words. That, in our view, indicates a somewhat loose description of what is alleged to have occurred. It is not clear, for example, from the Affidavit, whether in fact he was heard to make the observation said, because what is said is "he was seen to make it". Secondly, it is not clear whether it is suggested he made it to both the Members of the Tribunal, who would of course have been sitting one on each side of him, or whether he only made it to one of them, or whether possibly one came round behind the Chairman and the other Member so that they could confer together. None of that is set out in detail and when one contrasts that with the specific and vehement denial of the Chairman there is a great deal short of the amount of material that would be needed for this Tribunal to hold that there had been an unfair hearing in the Tribunal below.

The same applies to the other specific allegation which, in our view, is not a matter of any very great substance in any event, namely the claimed interchange that "perhaps justice was not seen to be done" and the claim that the Chairman said "notice had been taken of the criticism". Even assuming in favour of Mr Bukhari that he is entirely right and the Chairman is entirely wrong in his recollection of the matter, that does not come within any sort of distance of constituting an unfair hearing in our view.

I turn therefore to the other basis of the Appeal which was on the claimed stereotyping. Stereotyping, we take to mean, an unduly fixed mental impression on the part of the person concerned, in this case Mrs Withers. What is said in relation to that in the Notice of Appeal is that the stereotyping was constituted by Mrs Withers' memorandum on 17th February to Mr Carpenter when she made the observations that I have earlier read out, and from that it is submitted that that stereotyping resulted in Mr Bukhari being unfavourably treated in a variety of ways and in particular in being denied promotion and in being excluded from the possibility of managing staff working under his control.

Mr Munasinghe accepted that it was a question of fact whether or not there was stereotyping. The Industrial Tribunal specifically found that there was not. How they dealt with it was this in a paragraph following paragraph 23, numbered 8 (g) and (h) of their Decision, the important one being (g) that reads as follows:

"Mrs Withers put the matter to Mr Bukhari who closed his mind to the problem and simply gave a categorical denial. In her memorandum to Mr Carpenter dated 17 February 1989 Mrs Withers was not racially stereotyping Mr Bukhari, she was simply seeking to advance some reason, in the face of his denial, which might explain why he apparently accorded less favourable treatment to young white women. In these proceedings Mr Bukhari put forward no explanation for the less favourable treatment accorded to Miss AB and Miss EF."

That is a factual finding and unless we are clearly persuaded that it is a perverse finding it is well established, and indeed is not controverted by Mr Munsinghe, that this Tribunal is bound by findings of fact by the Tribunal below. Mr Munasinghe did not shrink from this and he submitted that where one found such evidence as is contained in the memorandum of the 17th February 1989, there is necessarily established stereotyping and that an Industrial Tribunal finding such evidence is acting perversely in not coming to the conclusion that subsequent treatment following on such a memorandum as that of Mrs Withers was tainted by racial discrimination contrary to the Race Relations Act. The Notice of Appeal is based upon that approach, indeed it is said in paragraph 12 of the Notice of Appeal:

"The Tribunal, whilst finding that the said stereotyping resulted in the Appellant being transferred (vide paragraph 22) and that the transferred post might be considered a detriment to the Appellant (vide paragraph 8(i)) came to the conclusion that there has been no breach of the 1976 Act."

In fact it is overstating the case to say that the Tribunal found that the said stereotyping resulted in the Appellant being transferred, what the Industrial Tribunal actually did was to say:

"Following receipt of Mrs Withers' memorandum Mr Carpenter decided on 31 March 1989 to transfer Mr Bukhari"

and it goes on to give what Mr Carpenter said in evidence about his reasons for doing that. But that is not the important point, the important point is that that ground of appeal begs a question in referring to "the said stereotyping". Had there been stereotyping we are in no doubt whatever that there would have been an infringement of the Race Relations Act 1976. It plainly is contrary to the Race Relations Act for conduct by a superior officer to be based on an unduly fixed mental impression based on racial discriminatory factors and had the Industrial Tribunal been persuaded that as a matter of fact Mrs Withers reached the conclusions that she did reach because of such an unduly fixed mental impression, based on Mr Bukhari's racial origin and religious belief, there is in our view, no doubt that they would have found the case that he brought established. But the factual question, which is the critical one, is was Mrs Withers in fact the prey to such an unduly fixed mental impression? Or was she, on the other hand, looking at the established conduct that there was by Mr Bukhari in the reports that he had made on the ladies in question AB, CD and EF and the complaints that had been received, in particular by Miss EF, who precipitated the writing of the memorandum in question, was she in the light of those factors, seeking to explain the observed conduct of Mr Bukhari? That is a question of fact on which it is conceivable that different tribunals might possibly have come to different conclusions. But it is undoubtedly a question of fact upon which there was evidence either way. The Industrial Tribunal heard Mrs Withers and came to the specific and categoric factual conclusion that she was not racially stereotyping Mr Bukhari, she was simply seeking to advance some reason for his conduct, and that is a finding which is in our view, binding upon us and which we have no jurisdiction to interfere with. There being in our view plainly evidence from which that conclusion could be reached by the Tribunal of fact, it is not for us to express our own view, since we have not heard the witnesses.

On those grounds we reject that category of ground of appeal in the Notice before us and in those circumstances the Appeal will be dismissed.