United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 565_91_2807

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BAILII case number: [1993] UKEAT 565_91_2807

Appeal No. EAT/565/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 July 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MR A C BLYGHTON

MISS D WHITTINGHAM

MISS K PARVEEN APPELLANT

MARKS & SPENCER PLC RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR W PANTON

(OF COUNSEL)

Commission for Racial

Equality

Elliott House

10-12 Allington Street

London SW1

For the Respondents MR A WATERS

(OF COUNSEL)

Mr F Kieran

Marks & Spencer Legal Dept

47-67 Baker Street

London W1A 1DN

MR JUSTICE KNOX: This is an appeal by Miss Kauser Parveen from the unanimous decision of the Industrial Tribunal sitting at Leeds on 12 July 1991 sent to the parties on 9 August 1991 that Miss Parveen's application under the Race Relations Act 1976 failed and therefore fell to be dismissed.

The Respondent is, Marks & Spencer Plc. The application as the Industrial Tribunal's decision makes clear, was based on racial discrimination under section 1(1)(a), the form that is commonly called the direct discrimination, coupled with section 4(1) which makes unlawful discrimination as defined in section (1) against another person:

(a)in the arrangements he made for the purpose of determining who should be offered that employment; or

(b)in the terms on which employment is offered; or

(c)by refusing or deliberately omitting to offer employment to the complainant."

That is a paraphrase but a close paraphrase of the terms of the section.

The Notice of Appeal puts forward three grounds for challenging the Industrial Tribunal's decision. The first is that the Industrial Tribunal erred in law in concluding that the Respondent Marks & Spencers did not discriminate against the Applicant on racial grounds when she wrote to the Respondent for information regarding various courses and was treated differently from other applicants. That does not reveal what the error in law was. Second, whether the Industrial Tribunal erred in law in concluding that Miss Parveen had failed to provide sufficient evidence to raise the inferences that would require a much stronger rebuttal than had been put forward by the Respondent and thirdly, whether the Industrial Tribunal's decision was perverse.

The argument was helpfully elaborated by Mr Panton for Miss Parveen in a Skeleton Argument that made those grounds of appeal somewhat more specific and stated three points that were taken the first two of which Mr Panton accepted could and should properly be taken together. They are put like this in the Skeleton Argument:

"1)The Industrial Tribunal erred in law in failing to draw the inference of racial discrimination when the primary facts indicated that there was discrimination of some kind and the Respondent had failed to give a satisfactory explanation.

2)The Industrial Tribunal erred in law in concluding that the Appellant had failed to provide sufficient evidence to raise the inference.

3)The Industrial Tribunal reached a decision that was contrary to the evidence and/or a decision that no reasonable Tribunal could have reached in not accepting the Appellant's evidence when there was no evidence in rebuttal from the Respondent."

The factual background to the case is that Miss Parveen made a succession of applications to Marks & Spencers with a view to obtaining training. There were in fact four applications made by her, one of them, the third, in a fictitious name as a pilot for comparative purposes. The first application was an application made in August or September for a young management training scheme. No issue appears to arise in regard to that because the reply that Miss Parveen got was that vacancies for that year on that scheme had been filled, this happened in 1990 but it was also said that they would be commencing recruitment in mid-October of the year for the September 1991 start and she was invited to ask again if she wanted information with regard to that.

The background that the Industrial Tribunal mentioned and may well have laid some store on in assessing how justified Miss Parveen was in making the application that she did make, was that conversations between her and her father had centred on the fact that there was a greater scarcity of employees of Asian or black or African origin in the Halifax Marks & Spencer store than one would expect given the number of persons of those ethnic origins that lived in Halifax. This background was regarded as being of some significance to the justification for the making of the application and indeed it appears from the evidence as recorded by the Industrial Tribunal that there was such an imbalance although there was an explanation given, namely that because of the low turnover of staff that, imbalance which historically must have increased over the last several decades, was not swiftly rectified simply because the staff did not turn over at any significant rate.

However that may be one then comes to the second of the four applications. This was one which is dealt with in this way by the Industrial Tribunal in paragraph 8 of their decision, they say:

"She then wrote for a different position with the company wanting simply a weeks's Business Placement Programme and on 7 November she had a reply. This reply is signed by Miss Wilkins. She, however, has no recollection of the letter and it is not surprising with an enormously large number of standard letters going through that she would not remember. That letter within it contains an error which is admitted and it states that the application was for the Business Insight Programme and that the vacancies had been filled for 1991. It is admitted that it should have been referred [I think this should read `should have referred'] to the Business Placement Programme and that the Business Insight Programme had not been filled but the effect was that, in any event, the Business Placement Programme having been filled the applicant would have been in the same position but that letter is inaccurate and gave rise to suspicion, bearing in mind the fact the seed had already been sown by the applicant's father."

That finding of fact seems to us clear and indeed this seems to be what the Industrial Tribunal later in its own decision says on it, that what happened was that there was an administrative error in wrongly identifying the relevant programme but in fact, by coincidence, rightly saying that the vacancies had been filled. It would of course have been a different matter had there been an erroneous statement that a programme was filled when it was not, but that is not the mistake that was made. The mistake that was made was in identifying the programme.

Then one comes to the third application which is the pilot scheme that Miss Parveen adopted. She wrote a letter in the same terms as her previous letter with all the same details but changing the address, giving her brother's address and putting in the name instead of her own name of Miss K Parveen, of Mr Ernest Green. Fairly obviously an English name although one could not exclude the possibility of it being the name of a person of say West Indian origin. She received back in reply a pro-forma letter enclosing literature and application forms. That is the other difference that arose as a result of that third application from what had happened in regard to the second application which did not give rise to application forms being sent to Miss Parveen. The letter which she received in answer to application No. 2 did say:

"I am sorry I am not able to be more helpful but thank you for your interest in our Company. However, as you may be considering retailing as a career I have pleasure in enclosing our current careers literature. Please do not hesitate to contact us if you require any further information"

It seems fairly clear, although it is not absolutely stated in so many terms, that she did not get application forms as the mythical Mr Green did.

We then get a fourth application which Miss Parveen made in her own name again this time to be sure whether there was a difference between the treatment that her Mr Green and she herself were getting and she made a further application and the forms that she got back were again different from the forms that were sent back to Mr Green but the Industrial Tribunal found that that was explicable because the standard form had changed in the meanwhile, between the date of Mr Green's mythical application and Miss Parveen's fourth application in her own name and Mr Panton very properly accepted that in the light of the Industrial Tribunal's finding that there was no significant difference between the treatment that Miss Parveen had and that which Mr Green had in the difference between the two forms, there is no basis for a complaint in respect of application Nos 3 and 4.

The situation therefore narrows itself down to applications 2 and 3 which have the two differing features, one the inclusion of application forms in Mr Green's application reply and the non inclusion in Miss Parveen's and secondly the administrative error that was made in relation to Miss Parveen's application. The Industrial Tribunal seems to us to have concentrated to perhaps a slightly misleading extent on finding, as they were perfectly entitled to do, that it was understandable that Miss Parveen should have made the application which she did make, rather than concentrating on what the result of that application actually was. What they say is this:

"We have to say, however, that it is perfectly understandable why Miss Parveen on the receiving end, as it were, of what went on, could have come to the conclusion she did. She starts off with the seed of doubt being sown in her mind by her father which, we say, is not unsupported by the reality of the situation, at least in Halifax and in some of the documentation produced by the company, and she is then faced with something which is a clear error, a mistake by the company and from that point when she applies in the name of somebody who was apparently English, that error is not made again and she therefore draws a conclusion. Having said that she then goes on to make a further application and is treated in effect in the same way but again unfortunately in that time the actual format of the documents has been changed and again it looks to her as though she might well have been treated differently, bearing in mind the doubt that is already there."

The Industrial Tribunal does not in terms say that they failed to find any discrimination either on the footing of no difference in treatment within the definition of Discrimination in section 1(1) of the 1976 Act or that it was on racial grounds as that provision requires. There can be no doubt in our mind and indeed Mr Panton did not suggest the contrary, that that must have been the conclusion to which the Industrial Tribunal came. What Mr Panton did say by way of criticism of that process was effectively two things.

He criticised the emphasis that the Industrial Tribunal placed on the absence of evidence as to what exactly Miss Parveen said in her several letters because, as the Industrial Tribunal pointed out, she did not keep copies of the letters she sent and Marks & Spencer which not surprisingly gets very many of these letters, does not keep them for any significant length of time so that the originals had disappeared and no copy was kept. It is true that the Industrial Tribunal spent a certain amount of time lamenting the fact that it was impossible to be sure exactly what it was that Miss Parveen had said but we cannot see an error of law in that aspect of the matter. It does not seem to us to have led to their rejecting Miss Parveen's evidence in any significant matter. They say in terms that she was a very honest witness and they obviously accepted that she made the various applications that she did in fact make. So that point seems to us to be something of a dead end.

The other criticism that is made is that there was a failure properly to apply the test which has been helpfully elaborated by Lord Justice Neill in King v Great Britain China Centre [1992] ICR 516 that should be applied in the process of seeing what it is that has happened and whether it justifies the inference that there has been unlawful racial discrimination. The Industrial Tribunal gave a compressed account of what Lord Justice Neill said at page 528, a very well-known passage which we do not find it necessary to repeat in terms. The Industrial Tribunal said this:

"Proof of discrimination is always difficult because it is rare indeed that any person or an employer admits to discrimination of any kind. With that in mind the appellate courts have approved a particular way of dealing with evidence in discrimination cases. While saying that the primary duty to prove discrimination is upon an applicant they say that that applicant only has to put forward evidence from which inferences can be drawn in the absence of rebutting evidence produced by the respondent."

Mr Paton says that that is a brief and inadequate precis of what Lord Justice Neill said in King v Great Britain China Centre.

Brief and inadequate it may conceivably be, but there is not, that we can see, an error of law in that abbreviated version and when one looks at the points that are urged upon us in criticism of the Industrial Tribunal's decision, they all, in our view, come down to saying that there was an inadequate acceptance of the weight of various different pieces of evidence. That seems to us to be essentially a matter of judgment for the Industrial Tribunal. There was not much material for saying that there was different treatment. There was the administrative error which seems to us plainly racially neutral and there was the fact that the application forms were included to Mr Green but they were not to Miss Parveen.

Whether or not it was right for the Industrial Tribunal to infer discrimination on racial grounds from that rather slender material is a matter for the judgment of the Industrial Tribunal in the particular case and we are quite unable to find that they have committed an error of law in not reaching such a conclusion. What we think about the subject is not relevant. Our function is merely to see whether there is an error of law in the decision which is appealed from so that ground in our view fails.

The ground which is based on perversity seems to us even more clearly misconceived because perversity is only a conclusion that this Tribunal will reach in relation to a decision of an Industrial Tribunal in very rare cases where there is no error of law on the face of the decision. True it is that in East Berkshire Health Authority v Matadeen [1992] ICR 723, Mr Justice Wood re-emphasised the existence of a category of case where it is possible for this tribunal to find perversity even if there is not either a finding of error of law on the face of the decision or a finding of fact which is unsupported by any evidence whatever. There can be cases where the only possible conclusion in the light of the experience of the Industrial Members in particular is one which is flat contrary to the decision of the Industrial Tribunal and in those circumstances it is the duty of this Tribunal to give effect to such a conclusion. But, fortunately, and not surprisingly because industrial tribunals are staffed by sensible people, this is an event of the rarest occurrence, as is made clear in the Matadeen case. In this case so far from being persuaded that a different conclusion is the only possibly correct one, it seems to us eminently arguable to put it no higher, that the Industrial Tribunal reached the correct conclusion and that is quite enough to exclude any question of perversity.

For those reasons this appeal will be dismissed.