United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 85_90_0604, [1992] UKEAT 85_90_604

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BAILII case number: [1992] UKEAT 85_90_0604

Appeal No. EAT 85/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON SW1Y 4JU

At the Tribunal

On 6th April 1992

Before

THE HONOURABLE MR JUSTICE KNOX

MISS M L BOYLE

MR R H PHIPPS

LONDON BOROUGH OF BARKING & DAGENHAM APPELLANTS

A K CAMARA RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR R GREENING

(Of Counsel)

The Solicitor to the Council

Town Hall

Barking

Essex

1G11 7LU

For the Respondent MR G MEERAN

(Of Counsel)

Messrs Karim

Solicitors

84-86 Gray's Inn Road

London

WC1X 8AE

MR JUSTICE KNOX: The London Borough of Barking and Dagenham ("the Borough") appeals against a decision of the Industrial Tribunal sitting at London (North) on the 10th November 1989 which was sent to the parties on the 20th December 1989. The Industrial Tribunal decided unanimously that there was direct racial discrimination by the Borough under s.4(1)(a) of the Race Relations Act, 1976 ("the Act") against Mr Camara, the applicant before them, in the arrangements made for short-listing applicants and by a majority that there was victimisation of him under s.2(1)(a) of the Act. Both those findings are appealed against.

The context in which those findings were made was that Mr Camara's application was his fourth to the Borough for a job of mobile porter. This job involved the cleaning of communal areas on the Borough's housing estates and included driving a light van. It also involved a certain degree of contact with tenants and other members of the public. Mr Camara was born in the Gambia and came to the United Kingdom in 1961. On his first application in October 1984 he was short-listed but not on any of the subsequent three occasions. His third unsuccessful application gave rise to an application by Mr Camara to the Industrial Tribunal. That application failed and the Industrial Tribunal from whom this appeal is brought said of that

"We do not necessarily agree with the decision of that Tribunal."

That seems to us an unfortunate observation. If that sentiment was a factor in their reaching their decision in the application before them it was an improper matter to take into account. If, as seems to us to be more likely, it was not a factor which they took into account, it was by definition irrelevant and in our view better left out. An Industrial Tribunal, which has no appellate functions, like anyone else, is entitled to its own views about the validity of the decisions of other courts and tribunals but it is apt to give an unfortunate impression of a lack of impartiality for those views to be expressed in the course of a formal decision.

It is the fourth unsuccessful application by Mr Camara with which these proceedings are concerned. There was an earlier hearing before an Industrial Tribunal in July 1987 but the award then made was set aside on appeal and the decision under appeal before us was a full rehearing. The earlier hearings are not now relevant. No claim was advanced on the rehearing of indirect racial discrimination.

The advertisements which Mr Camara answered appeared in November 1986. He was sent and he completed an application form as did 44 other candidates. The application form requested details of present and past employment but the only headings under which information was requested were "Employed as", "Name & Address of Employer", "Date Commenced" and "Date Left". In particular there was no space for stating the reason why earlier employments terminated. The application forms were sorted by a Mr Cooper an employee of the Borough in the Housing Department into three categories "No", "Possible" and "Yes" but that classification does not appear to have had any practical effect because Mr Crowley, the controller of housing who was the Borough's only witness, went through all the application forms and prepared a spread sheet upon which the applicants were listed by number and under their number there was placed either a tick or a cross against five criteria "Unemployed", "Stability of Employment", "Age 25-50", "Cleaning Experience" and "Local Government Experience". Mr Crowley then totalled the number of ticks each applicant scored. One applicant had five ticks but was excluded by Mr Crowley because he recognised him as a former employee whom he would not want to re-employ in any circumstances. One applicant scored four ticks and was short-listed. Ten applicants scored three ticks and four of them were short-listed. Mr Camara scored two ticks only. One as "Unemployed" and the other "age 25-50". 6 other applicants scored exactly the same ticks and crosses as Mr Camara and none of them was short-listed. The applicants were not asked to state their ethnic origins and there is therefore no way of verifying whether those not short-listed were of any particular ethnic or national group.

The Borough had a policy of recruiting unemployed persons only, provided candidates met, or would meet with appropriate training, the requirements as to education and experience laid down. This made the unemployment criterion more important than others. The answers given on behalf of the Borough to the questionnaire served under s.65 of the Act specified as a qualification.

"preferably . . . . . . unemployed and living in the London Borough of Barking and Dagenham."

Mr Crowley's evidence to the Industrial Tribunal was that the qualification would be satisfied if an applicant lived in an adjoining borough, provided the other requirements were fulfilled. The other criterion to which Mr Crowley attached much importance was what he called "stability of employment". His evidence was that he treated 5 years or more in a past employment as satisfying this qualification. Mr Crowley treated local government experience as the least important of his five criteria.

The Industrial Tribunal said this of the victimisation claim

"As far as the allegation of victimisation is concerned, it is the view of the majority of the Tribunal that Mr Crowley's evidence is not accepted as true on the balance of probabilities. His evidence was called into question to some extent by the evidence he gave about one of the candidates for the job whose name he recognised as being that of a former employee whom he would not want to re-employ in any circumstances. If he had gone so far in looking at the applications, he could and, in the view of the majority, did look at the applicant's job application and is as likely as not to have turned it down because of the applicant's earlier application to the Industrial Tribunal on grounds of racial discrimination. It is the view of the minority member that Mr Crowley's evidence is accepted. He was genuine when he stated that he recognised the applicant's name and remembered him but that he did not reject him because he had brought the earlier proceedings. This is entirely a matter of assessment of witnesses and the majority view prevails."

That passage contains one serious error of law and one serious logical flaw. The error of law resides in treating the finding that it is as likely as not that Mr Crowley turned down Mr Camara's application because of his earlier application based on racial discrimination as satisfying the onus of proof on the balance of probabilities. Indeed Mr Meeran, who argued the case for Mr Camara with his customary fairness did not seek to defend "as likely as not" as the equivalent of proof on the balance of probabilities. In such a serious matter as finding that an officer holding a responsible position in the Borough's housing department like Mr Crowley has been guilty of victimisation contrary to the Act it is in our view of critical importance that the proper standard of proof be applied. This error of law is not in our view corrected by the earlier statement in the decision in para 4 that the majority found that under s.2(1)(a) of the Act the respondent Borough victimised Mr Camara because he brought the earlier proceedings against the Borough. The Industrial Tribunal added

"It is the minority member's view on the facts and the law that there was no discrimination on the basis of victimisation. The difference of views of the majority and minority rests solely on the assessment of the content of the evidence of the witnesses and also in the way in which they gave it and (sic) in the context of the documents presented to us."

That passage only states a general conclusion and does not impinge on the question of onus of proof.

The serious logical flaw in our view resides in the majority conclusion that Mr Crowley's reliability as a witness was called into question by his having given evidence of having recognised one of the candidates other than Mr Camara as a former employee and of rejecting him. The Industrial Tribunal plainly accepted that particular piece of Mr Crowley's evidence and we can see no logical basis upon which his reliability as a witness could be called into question by his giving truthful evidence about another candidate. That evidence would be a basis for finding that Mr Crowley could remember past employees and past candidates who complained of racial discrimination. But it is plain on the face of the Industrial Tribunal's decision that Mr Crowley admitted recognising Mr Camara's name and remembering him. The only issue was whether that was why Mr Camara was not short-listed. But Mr Crowley's frankness about his treatment of the ex-employee cannot sensibly be taken as any indication of his unreliability as a truthful witness.

For those reasons, but principally because of the error of law as regards the onus of proof, we allow the appeal as regards victimisation claim. If this is to be pursued further it will have to be remitted to a differently constituted Industrial Tribunal.

The attack upon the direct racial discrimination finding was based on a very detailed and careful argument by Mr Greening for the Borough, the main submission of which was that for there to be a proper finding of direct racial discrimination, or indeed victimisation, there has to be a finding of less favourable treatment of the person who is the victim of the discrimination. Mr Greening sought to demonstrate by reference to Mr Crowley's spread sheet that there was no material upon which to base a finding that Mr Camara was less favourably treated than any genuine comparator. He pointed out that the Industrial Tribunal made no finding that Mr Crowley did not genuinely apply his spread sheet in picking short-listed applicants nor that Mr Camara should have had a tick in any category in which he got, not a tick, but a cross. He also submitted, and this was not disputed, that it is no part of an Industrial Tribunal's function in deciding a claim of racial discrimination, to assess whether the selection process is an efficient one. Unlawful discrimination is one thing, inefficiency is quite different. The Industrial Tribunal itself recognised this to some extent in its decision when it said

"It is not for us to substitute our view of what we would consider "stability of employment" in the circumstances."

Mr Greening sought to show that by reference to the five criteria in Mr Crowley's spread sheet it could not be said that Mr Camara was less favourably treated than that of a relevant comparator. So far as unemployment was concerned he scored a tick, similarly he got a tick for being within the preferred age range. The fact that he understated his age on his application form by one year at 47 when he was 48 is of no great significance. He was within the preferred age range of 25 to 50 years. Similarly it is of no great significance that no less than 12 candidates were not given a tick for "age 25 - 50" although they were between the ages of 51 and 55 the latter of which was the maximum age mentioned in the advertisement issued by the Borough. So far as stability of employment was concerned Mr Camara did not get a tick but a cross although his application form revealed previous employments for periods of 4, 5, 2 and 3 years with other employers, so that if Mr Crowley had applied his stated test of not less than 5 years continuous employment Mr Camara would have got a tick. However even here Mr Greening was able to identify five other candidates who had as lengthy if not longer periods of employment as Mr Camara but did not get a tick under this head. Conversely those who did get a tick for stability of employment had significantly longer periods of employment with one or more earlier employers than did Mr Camara. Finally as regards the criteria of cleaning experience and local government experience Mr Greening submitted that there was no suggestion that Mr Camara should have been given a tick for cleaning experience for he had none and although the Industrial Tribunal criticised Mr Crowley's refusal to accept work for a health authority or other public authorities as being as good a qualification as local government experience there was no finding that Mr Camara should have been awarded a tick under this head or that others who were should not have been. Overall it was submitted that there was no factual basis for finding less favourable treatment of Mr Camara than any appropriate comparator.

The Industrial Tribunal criticised numerous inconsistencies in the criteria specified as the appropriate ones at various different stages in the history of the matter, that is to say between the advertisement, the answer to the questionnaire, Mr Crowley's oral evidence and Mr Crowley's spread sheet. Some of the criticisms made by the Industrial Tribunal were not entirely accurate or we think fair. For example when dealing with Mr Crowley's yardstick of five years or more previous employment the criticism was made that Mr Crowley's view seemed to vary with each candidate but when the examples given of short-listed candidates are examined they did in fact all qualify under Mr Crowley's test. For example the Industrial Tribunal said of a short-listed candidate that he

"had broken service with London Transport as a bus driver and then two periods of employment of one year which would hardly indicate stability of employment for the respondent's purposes."

In fact the service with London Transport was of two periods of 4 and 14 years which by any standards amply measured up to Mr Crowley's test. Doubtless it was a very crude test capable of much criticism from the efficiency point of view but it was not anywhere nearly as capriciously operated by Mr Crowley in preparing his spread sheet as the Industrial Tribunal suggests.

The heart of the Industrial Tribunal's decision on direct discrimination is in para. 9 of its Decision which reads as follows:

"As for the alleged direct discrimination, although it is the unanimous decision of the Tribunal that there was such discrimination, the reasoning of the majority and minority member differs. It is the view of the majority, in assessing Mr Crowley's evidence, that it was unreliable enough to warrant an inference from the facts outlined that there was discrimination in the arrangements made for the purpose of determining who should be offered an interview for employment. The inconsistent application of criteria and the moving of goal posts for the different candidates was done in such a subjective manner that the inference to be drawn from the primary facts is that there was racial discrimination. The applicant was treated less favourably than other candidates on racial grounds. The minority view is that Mr Crowley acted in a manner which would not be expected of a seasoned and experienced manager in selecting candidates but that he did so without any intention to discriminate against the applicant on racial grounds and that his muddled (and perhaps even chaotic) approach to the task he had to perform in selecting candidates resulted quite inadvertently in discrimination against the applicant."

For our part we bear in mind that we did not see the witnesses, nor indeed do we have any notes of evidence and the case that is made is one of perversity rather than of any specific error of law. Although there are powerful factual arguments marshalled in Mr Greening's able submissions we are not persuaded that even allowing for our decision on the victimisation issue this is one of those very rare cases where one can say that the result reached was one which no tribunal properly instructed could have reached. There was material upon which Mr Camara could have been given a stability of employment tick and that would have given him three ticks and put him in the field for selection. The evaluating how that process was effected as between candidates with an equal number of ticks is a matter of judgement and the Industrial Tribunal plainly formed an unfavourable view of Mr Crowley's evidence. For these reasons we do not consider it open to us to interfere with the Industrial Tribunal's decision on direct discrimination.