United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 680_93_1810

Appeal No. EAT/680/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 October 1994 and 1 November 1994

Judgment delivered on 17 November 1994

Before

THE HONOURABLE MR JUSTICE PILL

MR K M HACK JP

MR R JACKSON

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THE POST OFFICE          APPELLANTS

DR E ESSIEN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR ALAN PARDOE QC

The Solicitor's Office

Impact House

2 Edridge Road

Croydon

CR9 1PJ

For the Respondent MR RICHARD WILSON

(Of Counsel)

Messrs Makanda & Co

Paul Anthony House

724 Holloway Road

London

N19 3JD


 


MR JUSTICE PILL: This is an appeal from the decision of the Industrial Tribunal held over a period of 15 days between late November 1992 and early July 1993 at Bedford. Unhappily, one of the members of the Tribunal died in early 1993 but, with the consent of the parties, the hearing continued with a Tribunal consisting of two members. The Tribunal held that Dr Eugene E Essien had been discriminated against on the ground of his race in the course of his employment with the Post Office. He was awarded £1,250.00 for injury to his feelings. At a subsequent hearing he was awarded a further sum by way of compensation making a total award of £10,000.

Dr Essien came to the United Kingdom in 1972 and obtained degrees here including a doctorate from the University of Wales. On 31st July 1989 he was employed as a Postal Officer with the Post Office for a trial period of one year. He was assigned to the Market Research Department. During the trial period Dr Essien successfully applied to transfer from London to Milton Keynes where a Post Office headquarters was re-locating. By agreement, his final trial report was put back to 30th September 1990. He had successfully applied for a four week holiday period on 20th July until 20th August 1990. The trial period was later extended to 30th November 1990. He was dismissed by a letter dated 4th December 1990.

The Tribunal's "full reasons" are lengthy. They include what are described as "Findings Of Fact" spaced over 14 pages and divided into 35 paragraphs. We have to say that the title is not entirely apt. The paragraphs contain a narrative much but, by no means all, of which can be taken either as undisputed fact or as fact found. The narrative is interspersed with comment.

The Tribunal set out the relevant statutory framework, refer to authority and pose the question to be considered. In several paragraphs they set out their reasoning which led them to conclude "that the comments and statements made by Miss Watton were racially motivated in that we are not satisfied with the explanations which have been put forward for them". Miss Watton was one of two line managers to whom Dr Essien reported for the whole of his trial period, the other being Miss Lonsdale when he moved to Milton Keynes.

The Tribunal reject the theory that Post Office Managers took concerted action against Dr Essien but noted, correctly, that the Post Office are vicariously liable for Miss Watton's actions by virtue of Section 32 of the Race Relations Act 1976. At Milton Keynes, Mr Peter Child was Marketing Director, Mr John Payne, Assistant Director Marketing, Miss Carole Watton was Market Information Manager and Miss Rosalind Lonsdale Advertising and PR Manager. Mrs Whitehead, Mr Anders and Mr Biggar were PEB's. Mr Peter Butcher is Assistant Director Personnel in Parcel Force.

Mr Alan Pardoe QC, for the Post Office, first submits that the Tribunal have not asked themselves the correct question. By concentrating upon the questions of burden of proof and inference dealt with in King v GB China Centre [1992] ICR 516 they have been distracted from the "simple question" which on the basis of the House of Lords decision in James v Eastleigh Council [1990] ICR 554 they should have asked, namely would Dr Essien have received the same treatment, that is dismissal, from this employer but for his race?

Mr Pardoe further submits that King was wrongly decided because it is inconsistent with James and James was not cited. We can say at once that we reject that submission. James is concerned with the question to be asked and King with the proper approach to evidence when answering it. However, there may be some force in Mr Pardoe's submission that by concentrating on inferences to be drawn, the Tribunal have allowed themselves to be distracted from the question to be asked. That question is however sufficiently posed at paragraph 7 of the decision:-

"We are concerned therefore in this case with the question of whether Dr Essien's treatment was less favourable than that of other employees who are of different ethnic origins".

That question could be rephrased to accord with James but the answer to the rephrased question would in our view inevitably be the same as the answer to the question posed.

A further criticism made by Mr Pardoe of the formulation of the decision is that the Tribunal, having correctly stated that Dr Essien's complaint is of breaches of Section 4(2)(b) and (c) of the Act, do not express a conclusion as to the act of detriment found. That appears only in the decision following the hearing on 21st March 1994 when the amount of compensation was decided. In paragraph 8 of their decision following that hearing the Tribunal stated that "we are entirely satisfied that the detriment suffered by the Applicant was that of dismissal". Mr Pardoe submits that the Tribunal's reasoning at the main hearing is flawed by their failure to have in mind, when considering the evidence, the need for a causal link between a particular act to the Applicant's detriment and the alleged racial discrimination.

Counsel have taken us in great detail through the bundle of contemporaneous documents and have referred us to the full notes of evidence. Mr Pardoe submits that the Tribunal's findings of fact do not support the conclusion reached. There is nothing in those findings, or in the evidence, from which the inference that Dr Essien would not have received the same treatment but for his race can properly be drawn. For example, at finding (viii) the Tribunal state that they find a remark of Miss Watton "somewhat curious" but there is no basis for a finding that it was based on racial considerations. At paragraph (xxiv) reference is made to breaches of procedure. It is added that they "appeared not to be uncommon" though reference is made to the "marked contrast in the tone of the letters written" to the other employee compared with that in letters written to Dr Essien.

There is no doubt that the system of appraisal adopted during this trial period was detailed and elaborate. In the case of Dr Essien, weekly reports and appraisals were instituted. Dr Essien replied in detail to criticisms made of him and made counter-criticisms of Miss Watton claiming that errors blamed upon him were in fact errors of Miss Watton. In a memorandum of 16th November 1990 to Mr Payne, he alleged that:-

"Unfortunately, however, it has become apparent that my two Managers are intent on "getting rid of me" and I believe I have been the victim of a deliberate and contrived campaign to achieve this end ever since June this year (when the new arrangements commenced)".

It is first necessary to consider the reasoning of the Tribunal which is set out following their long narrative.

"8. We have no doubt at all that Dr Essien is a capable and intelligent man who found himself put under extreme pressure by the weekly appraisal sessions which were held. His work was scrutinised to the minutest degree. The whole appraisal system that was set up was, in our view, heavy handed, for, even when he performed his tasks satisfactorily, the tasks were described as being "light-weight". We, however, heard evidence that other trialists had been subjected to the same treatment and at the end of the period of scrutiny some succeeded in satisfactorily completing their trial. Dr Essien himself concedes to making some mistakes, this is hardly surprising for, everyone does from time to time, as witness the examples of mistakes made by those managing him. The respondents without doubt failed to follow their own procedures but the evidence before us was that this was a common occurrence and it seems to us that a cavalier attitude was adopted by the respondents towards their own procedures. We have little evidence before us that the appraisal and the breaches of procedures were applied any differently to persons of different racial origins from Dr Essien save in the tone of Mr O'Connor's appraisals and the courtesy of the letters written to him as contrasted with those written to the applicant.

9. The effect of the treatment meted out to Dr Essien was undoubtedly demoralising to him and it gives us no pleasure to say this, it is apparent to us that there came a point during the time of Dr Essien's employment that, as far as Miss Watton was concerned he could do nothing right. It is equally apparent that those reporting to Miss Watton felt the need to inform her of every mistake or failure on Dr Essien's part, however slight, rather than speaking to him. It is clear to us that from the first trial report, Miss Watton appeared anxious for Dr Essien to be transferred away from her section. This was further reflected in Mr Delger's comments in the intermediate report and also from Mr Delger's remarks about Dr Essien's over-qualifications for some of the menial tasks which he was being asked to perform especially when Mr Delger gave the applicant little or no work to do for him, that was the evidence before us. We wonder how he could in those circumstances be in a position to express those views if he had not placed heavy reliance on Miss Watton's views and comments. We find that the references to his qualifications in this context are somewhat incongruous and they seem to have been a thread which ran throughout his time of employment in that, they were being queried within a relatively short time after his appointment and thereafter continued to be queried. We have found it strange for the employers to need to query those qualifications for the applicant was not doing a job which required them, or the technical knowledge which he had gained in obtaining the qualifications, in order to perform the duties of a postal officer.

10. We have found the references to the applicant's verbal skills and understanding as being open to question, incomprehensible. The references in Miss Watton's handwritten notes to the applicant's language difficulties (Page 40A additional bundle) are equally incomprehensible to us and finally, the statements made by Miss Watton in the draft of her final report, which were deleted from the submitted report at Mr Walls' suggestion, lead us to conclude that the comments and statements made by Miss Watton were racially motivated in that we are not satisfied with the explanations which have been put forward for them.

11. The applicant put forward the theory that there was concerted action against him by both managers and their PEBs as well as other members of senior management in the form of Mr Walls, Mr Payne, Mr Child and Mr Butcher. We reject that theory. We see no evidence to support it. It seems clear to us that the senior managers were supporting the applicant's line manager Miss Watton in the decision that had been taken without question. Similarly there was no evidence before us that Miss Lonsdale, Mr Anders, Mrs Whitehead or Mr Biggar acted in concert against the applicant. They displayed impatience with him towards the latter part of his employment and had no hesitation in noting even the most trivial failure in his performance, but that does not constitute a "conspiracy". Mr Biggar's written remarks displayed either impatience or, an attempt to be "clever", which was in poor taste but does not provide evidence of a "conspiracy" either.

12. We therefore conclude that the applicant was discriminated against on the grounds of his race by Miss Watton and the respondents against whom this claim was brought and who are vicariously responsible for Miss Watton's actions under the provisions of Section 32 of the Act. ......"

The reference in paragraph 10 to "verbal skills and understanding" comes from a comment in paragraph (xxviii) of the "Findings of Fact". The Tribunal state they were troubled by "the questions raised regarding the Applicant's verbal skills and understanding, for, having heard the Applicant give evidence over several days, and having seen examples of his written work, we find it incomprehensible that anyone should query his verbal skills and understanding". The reference to "language difficulties" is in a handwritten addition to a report written by Miss Watton stating that "certain that he has verbal (probably Miss Watton's emphasis) language difficulties". The deleted statements are first that "it is also a fact that until the end of May Eugene never had to perform either the number or extent of the duties proper to this post" and secondly "despite this he has not achieved the necessary level nor has it been possible to discover why there is such a disparity between his qualifications and his performance, although I do feel that his verbal skills and understanding are open to question and may be part of the answer. In conclusion I do not think that it is acceptable to continue with Eugene further. A management input of 1-2 days per week, over and above directions on particular tasks has been required since 20th August without apparent effect. It is not sensible to continue with this".

Those are the matters upon which the Tribunal apparently rely in reaching the conclusion in paragraph 12 that Dr Essien was discriminated against by Miss Watton on the ground of his race. Paragraph 9 of the decision is, with respect, somewhat discursive and while there are comments critical of Miss Watton and of Mr Delger they do not appear to be capable of, or thought by the Tribunal to be capable of, providing a basis for a finding of racial discrimination by Miss Watton. In paragraph 11 what is considered and rejected is the conspiracy allegation which had been put forward by Dr Essien.

Mr Pardoe submits that, in the context of the evidence as a whole, the inference that Miss Watton was guilty of racial discrimination cannot reasonably be drawn. Mr Wilson, for the Applicant, submits that where the employer's explanation for less favourable treatment is inadequate or unsatisfactory, the Tribunal is entitled and ought to draw an inference of racial discrimination unless they find a good reason not to draw the inference. Only a small number of black people worked in the department. Dr Essien was popular with the rank and file. A reference to a person having language difficulties suggests racial stereotyping and, when that reference is unjustified, a racial motivation should be inferred. Further, though the Tribunal themselves do not refer to this point, an adverse inference could be drawn from Miss Watton's failure, when giving evidence, to remember her written references to language difficulties. The function of the Industrial Tribunal should not be usurped and its findings respected unless they were perverse.

Mr Pardoe submits that the use of the words "in that" at the end of paragraph 10 demonstrate that the Tribunal have not applied the correct test. The Tribunal appear to have believed that if they found Miss Watton's explanations unsatisfactory it must inevitably follow that the real reason for her recommendation to dismiss was the application of a racial criterion. He relies upon the statement of Leggatt LJ in Qureshi v London Borough of Newham [1991] IRLR 264 at page 267:-

"In the absence of any hint of prejudice on racial grounds, the more natural inference from a failure in relation to one person is that there would have been failure in relation to others, if not to all. There is absolutely no warrant for an inference that others would not have suffered from the failures of which Mr Qureshi was the victim, or that he was so on account of any discrimination on racial grounds. Incompetence does not, without more, become discrimination merely because the person affected by it is from an ethnic minority".

It is submitted that, however unsatisfactory Miss Watton's conduct, as specified, is found to have been, it cannot reasonably be inferred from it that she applied a racially based criterion. That would be inconsistent with the evidence as a whole including the contents of Miss Watton's reports as a whole.

King makes clear that it is open to a Tribunal to draw inferences from the primary facts they have found. Direct evidence of racial discrimination is unusual. If no explanation for a decision is put forward by the employer, or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the decision was taken on racial grounds (Neill LJ at page 528 in King). However, King does not require that the inference must automatically be drawn. A finding that an explanation is unsatisfactory does not necessitate or render inevitable a finding that the real reason for the decision was a particular form of discrimination, namely application of a racially based criterion. Whether an inference should be drawn in a particular case depends, as in all fact finding exercises, upon the application of common sense and judgment to all the relevant evidence and circumstances.

In our judgment, the Tribunal have not applied the correct test. The wording of paragraph 10 indicates a failure of substance and not merely in the terminology used. It appears to us that they have treated King as if they were obliged to draw the inference once they were not satisfied with the explanations put forward. Unsatisfactory explanations may be given for a variety of reasons.

Mr Wilson has rightly urged us to guard against usurping the function of the Industrial Tribunal but, in the context of the evidence as a whole, we do not consider that it was an option open to the Tribunal upon their findings, to conclude that Miss Watton was guilty of racial discrimination. A theme in the reports is the surprise apparent that a man of intelligence and learning could not produce a satisfactory output or "demonstrate application of his intelligence in many practical tasks". Cross-examined, Miss Watton said that she was commenting not on Dr Essien's intelligence but "on his ability to use his intelligence". There was speculation in the evidence as to possible reasons for that. Very considerable attention was given by a number of people to appraisals. While we do not propose to restate in this judgment all the material to which we have been referred, it points in our view very strongly against there being any racial basis for Miss Watton's words and actions.

Arguments upon paragraph 11 of the decision were addressed primarily to the issue of causation but they are material also to this issue. The other managers are acquitted of racial discrimination. We bear in mind that only Miss Watton referred to verbal skills, understanding and language difficulties but, considering the evidence as a whole, we do not consider that it was permissible to single her out as a discriminator upon a finding that the others were not.

The findings of fact refer to the "very negative feed back" Miss Watton was getting from Mrs Whitehead and Mr Biggar. It was Dr Essien's evidence that "Miss Watton and (our emphasis) Miss Lonsdale effectively withdrew from him his flexi-time working", a subject of complaint, though not one found relevant by the Tribunal. Miss Lonsdale suggested that the Applicant should be independently assessed and it was Mr Walls who rejected that suggestion. It was Mr Walls who suggested weekly monitoring and who queried Dr Essien's date of birth and qualifications, conduct which distressed Dr Essien. Miss Lonsdale wrote a relevant memorandum to Miss Watton and final reports were prepared by Miss Lonsdale as well as by Miss Watton. The Tribunal found that both managers concluded that Dr Essien's performance was not satisfactory. In responding to Dr Essien's grievance letter, Mr Payne spoke to Mrs Whitehead and Mr Biggar (as well as Miss Watton) and they both responded with comments in writing. Some of Mr Biggar's comments are found by the Tribunal to have been "extraordinary". The Tribunal refer to Mr Butcher's hearing of Dr Essien's appeal against dismissal. In the course of the hearing, Mr Butcher commented that "in the final analysis however it had been the judgment of a considerable number of managers that he (Dr Essien) was not performing the job to an acceptable standard", though it is right to add that the comment is not repeated in the letter subsequently written to Dr Essien. A "grievance letter" of 16th November 1990 from Dr Essien to Mr Payne invoked the second stage of the employers' grievance procedure. In addition to making the allegation, already mentioned, that he was the victim of a "deliberate and contrived campaign", Dr Essien also stated that the reports of Miss Watton and Miss Lonsdale suggested to him collusion between the two managers concerned and "I believe they have collaborated together in order to present me in an unfavourable light".

When giving evidence, Miss Lonsdale said that after the move to Milton Keynes "Carole Watton and I had equal responsibility for the Applicant's performance". She said that they were talking to each other quite often about his progress. She too was accused but acquitted of racial prejudice.

Upon the evidence and the Tribunal's findings of fact, there is in our judgment inconsistency between their findings in relation to Miss Watton and others with respect to racial discrimination. Her actions were inextricably linked with those of the other managers and in particular Miss Lonsdale. Applying what was described to us as the "but for" test, it was not a permissible option to find that Miss Watton treated Dr Essien differently on racial grounds. That is particularly so in the absence of a finding that other members of management acted on that basis. Her references to language difficulties are too slender a thread upon which to hang a distinction. Indeed, the way in which the Tribunal have expressed themselves in paragraphs 9 and 11 adds weight to our view that they have applied the wrong test. The effect of the paragraphs is to acquit other members of management of being involved with Miss Watton in racial discrimination but the racial context and the test to be applied in that context do not emerge clearly from the contents of those paragraphs.

We are mindful of the importance to be given to the findings of fact of a Tribunal whose members have heard the witnesses at length. However we have come to the conclusion that in the circumstances the only reasonable conclusion upon the evidence, both oral and written, is that the allegation that Miss Watton's conduct towards Dr Essien was based upon a racial criterion is not well founded.

We can consider the question of causation, that is whether Miss Watton's recommendation was an effective cause of the dismissal, briefly. We accept Mr Wilson's submission that an Applicant does not have to establish that the conduct of the person complained of was the sole cause for dismissal (Owen and Briggs v James [1982] ICR 618). We accept that the Tribunal were entitled to find, on the evidence, that she had an important position in relation to Dr Essien. The evidence does not however permit, in our view, a finding that the "senior managers were supporting the Applicant's Line Manager Miss Watton in the decision that had been taken without question". The decision was not taken by her. Miss Lonsdale was equally the Applicant's Line Manager. The Applicant's grievance was considered in detail by Mr John Payne in his letter to Dr Essien of 29th November 1990. He stated that:-

"In conclusion I can only repeat that I find no evidence to support your allegations. The fact that separate managers with quite different backgrounds and personalities have all come to substantially the same conclusion about your performance only adds weight to my conclusion that the report on your trial was entirely appropriate and that treatment of you during the period was more than fair. It seems strange to me that the majority of your comments on individuals relate to Carole Watton though the vast majority of the substance of your submission relates to work on Rosalind Lonsdale's wing of the section".

Mr Payne wrote in detail and the letter of dismissal was signed by Mr Walls on 4th December 1990. While action by Miss Watton could potentially be causative of the dismissal, the Tribunal's conclusion about the role of other managers and causation cannot be justified.

For these reasons, the appeal will be allowed and the application of Dr Essien dismissed.