United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 659_94_1511

Appeal No. EAT/659/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 November 1994

HIS HONOUR JUDGE J HULL QC

MR D A C LAMBERT

MR A D SCOTT

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DR S GOSSIEL          APPELLANT

SHEFFIELD CITY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


JUDGE HULL QC: This is an appeal to us by Dr Gossiel, appearing today in person. Dr Gossiel appeals from a decision of the Industrial Tribunal sitting under the chairmanship of Mr David, with two industrial members, at Sheffield on 14 and 15 April 1994. Dr Gossiel had complained to the Tribunal of racial discrimination. His application is with our papers and he sets out there that he is a gentleman of Libyan origin, he says that he is employed as an English as a second language (ESL) tutor at the Pakistan Muslim Centre in Sheffield on a full-time basis. He says he saw two advertisements for two vacancies in the Council's Education Department and applied for both the positions: as a Yemeni English Support Teacher and Arabic Language Teacher. He was invited for interviews for both those and was interviewed for the first job and second job and he was informed that he had been unsuccessful. He says:

"I later discovered that both successful applicants were of Yemeni origin.

I believe that I had more relevant qualifications and experience for these posts than those appointed, but was not successful in being appointed to either post because of my national origin."

He being, as I say, Libyan.

In their reply, the Sheffield City Council, the Respondents, described various matters and they said the selection was based on relevant criteria and that:

"The reasons why the Applicant was not selected for either of the posts were that he did not fulfil the criteria for appointment as set out in the personnel specification and job description to the degree to which the successful candidates were able to comply with these criteria. The decision following proper discussion, was unanimous."

That was what the Council said about it and it was into those allegations made by Dr Gossiel and into the answers made by the Local Authority, the City Council, that the Industrial Tribunal had to enquire. They set out some of the facts which I have mentioned. They say he had been unable to find full-time employment. There seems to be some confusion about that but we are not concerned directly with that. They set out what I have already referred to, the two successful candidates being both of Yemeni national origin. Then they set out a good deal more about the nature of the work which was being offered, and they referred to a body which Dr Gossiel has criticised to us, a special unit known as SUMES or the Sheffield Unified Multicultural Education Service, under the control of Mr Ahmed Gurnah, a Muslim of Tanzanian origin. This Tribunal spent two days on the matter and a third day spent on considering and refusing an application by Dr Gossiel to review their decision. They say that:

"6. There are no disputes as to the primary facts in this case. They are set out in the documents before us. The issues that we are concerned with are really the inferences which should properly be drawn from those facts. Although it is for the applicant to prove his case we bear in mind that it is virtually impossible for him to obtain conclusive evidence of the grounds of any discrimination. Obviously nobody would be likely to admit to a policy of racial discrimination or to having discriminated. It follows that where there is evidence of any discrimination we must be prepared to draw an inference that the reason for the discrimination was racial unless of course the respondents are able to show that their selection was not made on racial grounds."

There they are referring to a well-known case. They did well to direct themselves to consider the principles stated in King v Great Britain China Centre [1992] ICR 516, although they do not refer to it by name, but that is one of the principles enunciated in that and other cases. Although the burden of proof, of course, remains on the Applicant himself, the Tribunal is to be ready to draw inferences if it appears that there has been discrimination.

They go on to say:

"7. In this case we have no difficulty in concluding that the applicant has shown that there was discrimination. There are many instances where the respondents' documentation refers to `Yemeni language', the `Yemeni community', `Yemeni students', and `Yemeni pupils and parents', yet in reality the primary qualification for these jobs was an ability to communicate in Arabic, a language which is common to many different nationalities."

They go on to mention again the selection of the two Yemeni candidates.

"8. Having said this we feel we should comment on the applicant's evidence and on the impression that he made on us."

They then make some remarks which Dr Gossiel says he finds very humiliating and hurtful, so we certainly will not repeat them but they were based on the two days which he had evidently spent before them. They had had an opportunity which they were entitled to exercise to consider him and all the other witnesses in the case and see what they made of the evidence and the impression which the witnesses made on them. They go on, having made those remarks which Dr Gossiel finds very hurtful:

9. We were very impressed by the evidence of the 3 witnesses for the respondents. They were all members of the selection panel that made these appointments. Notes of the interviews that they had with the candidates were kept by Mr Coupe who also recorded the salient points of the subsequent discussions. We accept that at no time was the question of the national origin of the candidates raised and we note that the application forms contained no reference to such information. In particular we found Mr Gurnah to be a most dedicated and professional administrator and we accept that he has taken a particular interest in equal opportunities. In his evidence he told us that he had known the applicant for a considerable period and that he was sympathetic to the applicant's difficulty in obtaining suitable employment. We accept that in the discussions which followed the interviews with the candidates he was determined that the applicant, who had the best `paper' qualifications should have his case properly considered. We accept that Mr Gurnah was influenced in his conclusion by his concern for the applicant's inability to `put over' his knowledge to young people."

Therefore, having considered all that, they say:

"Having heard the applicant give evidence and having read the application forms of the successful candidates we think that the respondents' decision was reasonable. We conclude that the respondents did not either consciously or sub-consciously set out to appoint a Yemeni national to these posts and we accept that the selection was based on the panel's reasonable assessment of the way the various candidates measured up to the published specification and criteria."

They also say a little earlier:

"In our unanimous view the reason that the applicant was not selected for either of these 2 positions was as described by the respondents in their notice of appearance."

Dr Gossiel has made a large number of criticisms of the selection panel and of the Industrial Tribunal itself, saying that for various reasons he put forward, they were prejudiced against him, that they did not give him a fair hearing, and he says that is obvious from various matters.

But this case is in our list so that we can consider whether there is any point of law. On all questions of fact, the Industrial Tribunal has the last word. As the Court of Appeal has reminded us repeatedly, Parliament has said that the Industrial Tribunal is to be the sole judge of facts, is to be the industrial jury which hears the witnesses, sees the documents and makes up its mind about all matters of fact and we have to ask ourselves, therefore, whether this plain conclusion, reached after what was obviously a fairly arduous and very thorough enquiry, is one which can be attacked as a matter of law. Having read the decision, and having heard all that Dr Gossiel has to say about it, and having looked at the other documents with our papers, it appears to us that there is no point of law here. Even with Dr Gossiel's assistance, we are unable to see any point of law. It is not enough, with great respect, to say the Tribunal was wrong, that the panel was wrong, that people were prejudiced. These are all matters which the Industrial Tribunal itself has to consider.

They appear to have considered them with considerable care and they have set out in a decision which is by no means all one way, that there was evidence of discrimination and they therefore had to consider very carefully whether, in fact, there was discrimination or whether, in fact, it was rebutted by the evidence they heard. They were impressed by the witnesses and they are the only people who can say whether they were impressed by the witnesses called by the Respondents. The Respondents' witnesses satisfied them that there was, in fact, no racial discrimination in this case and they have said so. We realize that that is a result very unsatisfactory to Dr Gossiel and that Dr Gossiel is not convinced, as the Industrial Tribunal was, that the decisions were reached in good faith. He is, of course, entitled to his own opinion but, however that may be, he does not show us, simply because he disagrees with the decision and simply because he is undoubtedly a man of high education and attainments, that this Tribunal was wrong in law. Therefore, in those circumstances, having heard all that Dr Gossiel has said to us, we cannot allow the appeal to proceed. There being no point of law, we have to dismiss the appeal.