United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 154_95_0505

Appeal No. EAT/154/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 May 1995

Before

HIS HONOUR JUDGE J HULL QC

MR T S BATHO

MRS E HART

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MR B AGOZINO          APPELLANT

COVENTRY UNIVERSITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE HULL QC: This appeal is in our list under the Practice Direction to see whether, with Mr Agozino's assistance, we can discover any point or points of law, to enable us to entertain the appeal.

Under the section which gives us our jurisdiction, section 136 of the Employment Protection (Consolidation) Act 1978, we are expressly restricted by Parliament to considering points of law. We are in that respect much more restricted than say the Court of Appeal, which can consider points of fact as well as law. I say this knowing that Dr Agozino, as he should properly be called, is well aware of these matters, having high qualifications in Criminology and other subjects too.

His qualifications are set out in the Judgment of the Industrial Tribunal to which we are referring. Amongst other things, he has obtained a First Class Degree in Sociology at the University of Calabar and he has led an academic life as his vocation. He has been a lecturer at Calabar and he has obtained a Master of Philosophy degree in Criminology at the University of Cambridge; no minor qualification that. For the academic years 1990-1993 he was at the University of Edinburgh reading for a Doctorate of Philosophy in Criminology and he has been a tutor in other places.

He applied for employment as a lecturer at the School of Health and Social Sciences at Coventry University and attended there for an interview on 5 November 1993. He had been short-listed out of about 18 candidates. There were only two short-listed and they were seen by a committee of four.

It is, of course, not our duty to consider the appropriateness or suitability of the way in which the university conducts its affairs. What in fact they did was to decide that

Mr Agozino should not be selected for the post which they were offering. Again, I will not go into all the reasons which they gave for that.

The way in which Mr Agozino was treated by the university led him to complain to the Industrial Tribunal, as he was entitled to, that he had been discriminated against in the matter of race; of course, such discrimination is unlawful. He gave particulars in his application which is dated 23 April 1994 and the university put in an answer, saying that they had not been guilty of discrimination.

The Industrial Tribunal, under the chairmanship of Mr Haslam, certainly an experienced Chairman, sat at Birmingham on no less than six days, to consider the complaints. It is quite clear that the complaints caused them anxiety and, indeed, the appeal to us causes us anxiety. It is not a case of an irresponsible or trivial decision to apply to the Industrial Tribunal or anything of that sort. Mr Agozino, as I said, is a distinguished gentleman, familiar with many aspects of the law and has pursued a career in academic life and it is necessary, if such complaints are made by a man in his position, to take them very seriously indeed.

It seems to us that the Tribunal, whether their conclusions were right or wrong, did take these complaints very seriously and devoted the greatest care to exploring them. They set out their decision, which takes 15 pages. They commented on the matters which Mr Agozino raised and they found a good deal to criticise in the way in which the committee had proceeded, and the way in which Mr Agozino was treated.

They most certainly were not entirely happy with the way in which the university had behaved, but they were equally not in any way satisfied that Mr Agozino had made out that he had been discriminated against or, as he put it, victimised by the university in the way in which he had been treated. Whether he had been treated well or badly he was not discriminated against in the matter of his race, and they said that after considering all the evidence. They heard all the four members of the committee and they heard Mr Agozino himself, who invited their attention to a great many matters and as I say, they took no less than six days to consider events which occupied perhaps three hours.

It is very important to say that when the Tribunal were considering these matters they had advantages which we do not have. Some of the complaints might seem to a person who is simply reading them on paper to be serious or, on the other hand, not to be very serious; to indicate something clearly wrong or not clearly wrong. It is absolutely essential for us to bear in mind that we do not see the witnesses. We do not have the expertise which the Industrial Tribunal brings to bear with its industrial members, who see the witnesses and understand the way in which these matters are managed, and we are confined by our statute to points of law. And therefore the question whether points indicate discrimination, or incompetence, or whatever it may be is a matter for them.

It is for them to say what they make of the evidence, which witnesses they believe and which they disbelieve, which witnesses they think are mistaken. They are, as it is well put, the industrial jury.

Mr Agozino appeals to us, and has set out matters in considerable detail in his Notice of Appeal (may I call it a skeleton argument) which is put before us, and he says these are points of law. I am not going to go all through them. We have listened to Mr Agozino with great interest and attention. He says that the Industrial Tribunal interpreted the guidance given by the Court of Appeal in King v Great Britain China Centre badly. In that case it was pointed out by Neill L.J. that:

"If you find discrimination or inconsistency in the way people are treated, and there is no obvious explanation and one of them who complains is of a different gender from others who have been treated differently or a different race, then in those circumstances the Tribunal is entitled to draw the inference that there is discrimination on that ground and must look anxiously to see whether there is any other explanation, and if there is no other obvious explanation, may well feel driven to the conclusion that there is unlawful discrimination on the ground of race or gender".

That was the view of the learned Lord Justice. Such a view has been described, no doubt respectfully, by other Judges as being almost a matter of commonsense, as it certainly is.

It is impossible, we think, to believe that a Tribunal like this, taking the care which it did, would overlook that guidance. Mr Agozino also says that in the very words of the decision it is spoken of as being the case that he would not "fit in". He would be "isolated". The Tribunal certainly were very concerned about that language. They looked at it carefully and they decided that what it truly meant was that his academic experience and expertise, which are undoubted, were not quite of the type that they wanted. It was not a case of personality or social life or anything of that sort.

The failure to "fit in" and the "isolation" would be owing to his academic bent and his various academic interests.

So that is how they dealt with that. Mr Agozino says to us:

"The evidence before the Industrial Tribunal should have been enough to lead to a different conclusion".

That, with all respect, is something for the Industrial Tribunal. Of course, it is self-evident that wherever you get tribunals of fact, whether they are juries or industrial tribunals or even Judges sitting by themselves to try cases, one person may reach one conclusion on the facts, another a different conclusion. The mere fact that the evidence is enough for the Tribunal to reach a particular conclusion does not mean that it is necessarily bound to reach that conclusion.

He says that they misdirected themselves, and he says that a paper (to which he attaches considerable importance, not surprisingly) which was given to him, was not read at the hearing, and if the Industrial Tribunal had considered that paper as a whole, they would not have reached the conclusion that the contents were not obnoxious.

He says they were obnoxious and showed a racialist attitude by the writer, who was one of those on the committee. He says the Tribunal merely accepted the assertions of the Respondents about the contents of the paper. I must say that this was, of course, a paper by an academic expert, and as the Tribunal themselves said, "It was quite incompetent for an Industrial Tribunal to express a view on the merits or otherwise of the paper". They accepted that it was an academic paper and that the contents should not be regarded as "obnoxious" or "racialist" in tone.

He said that they failed to note that the notes of interview had been suppressed. They do, in fact, mention that the notes had not been preserved. They might have inferred that they had been deliberately suppressed. They heard the witnesses responsible and they apparently did not make that inference. The notes had been shredded by the Chairman, apparently. Dr Agozino says those notes probably support his contention that the reason for his rejection was subjective rather than academic.

He says that the Industrial Tribunal was even misled about the identity of the school. It was a School of Health & Social Sciences and the fact that he was not, in any way, orientated towards the skills of nursing should not have told against him in any way. He says that they took only one comparator, they should have taken other comparators. That, again, must be a matter for the judgment of the Industrial Tribunal. He referred to the Race Relations Code of Practice and tells us quite rightly that, although it is not a document having statutory force in the sense that its provisions give rise to penalties or anything like that, nonetheless it does have statutory authority. Of course, he is quite right about that. And he refers to the clear finding that he is well qualified and he says that this is a case of victimisation.

What we have to do is a very limited duty, or at any rate it can be put very shortly. Having read the papers which are put before us, we have to see whether there is a point of law in the case which is, in our view, fairly arguable. Having all of us considered this, as I say, with anxiety, and without any feeling of complacency at all about what has happened here, we can plainly see that the Industrial Tribunal was also anxious about the case. But, we are not able to find here any error of law properly so called, on which we could give relief. The absolute essence of Mr Agozino's submissions to us appears to us to be that the Industrial Tribunal should have adopted a different approach and reached a different conclusion on the facts, bearing in mind all the matters which he indicates and all the evidence which was given in the case.

That is precisely something on which we cannot adjudicate. He says that if they had adopted a different approach they would have reached, or should have reached, a different result. That may well be so, but it was up to them to say, having heard the evidence and considered the arguments, what approach they should adopt, how they were to deal with the matter and what findings they were to reach. We do not think that it is shown that they went wrong in law in any way and if it is said that they went wrong in fact, then that is not a matter with which we can, in any way, interfere.

So I am afraid, Mr Agozino, that means that we have to dismiss the appeal now.