United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 270_95_1610

Appeal No. EAT/270/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MISS C HOLROYD

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MRS D LEUNG-CLIFFORD          APPELLANT

LIVERPOOL CITY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR R A GERMAN

(Representative)


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal from the Industrial Tribunal held at Liverpool over eight days in May, July and October 1994. The Tribunal heard a complaint of race discrimination brought by Mrs Leung-Clifford against the Liverpool City Council. In her Originating Application presented to the Tribunal on 10 September 1993, she complained, in relation to an application by her for the permanent post of a Project Leader, that she had been the victim of racial discrimination and harassment. She also complained about the breaking of procedures relating to employment and the breaking of statutory regulations relating to the employment of teachers, under Section 11 of the Local Government Act.

The claim was resisted by the Council. They denied that there had been any act of racial discrimination in relation to the appointment to the post of a Project Leader. The Council also denied, in response to Mrs Leung-Clifford's complaints, that it had breached or disregarded grievance and appointment procedures; or that it had breached or disregarded its Equal Opportunities Policy; or had broken any statutory regulations.

Those, in summary, were the issues which the Tribunal had to decide at the hearing. A large number of witnesses were called to give evidence on each side. In the Full Reasons notified to the parties on 19 January 1995, the Tribunal unanimously decided that Mrs Leung- Clifford was not discriminated against on the ground of her race. She was disappointed with the result and appealed by a Notice of Appeal dated 28 February 1995, contending that there were two grounds on which she sought to appeal and allege an error of law on the part of the Industrial Tribunal. First, that the Tribunal reached a decision inconsistent with the evidence and secondly, that the Tribunal had taken a decision in the absence of evidence on which it was based. Attached to the Notice of Appeal were detailed criticisms of the Tribunal's decision under those two broad headings.

This is the Preliminary Hearing of the appeal. The purpose of the Preliminary Hearing is to examine the decision to see if there is an arguable point of law, which this Tribunal has jurisdiction to decide on an appeal. The way in which the Notice of Appeal is framed indicates that the criticism of the decision is more on the grounds of fact and evidence, than on any question of law. It was therefore set down as a Preliminary Hearing and we have heard detailed submissions advanced by Mrs Leung-Clifford's lay representative, Mr German. We pointed out to Mr German at the outset of the appeal the statutory limitations on our powers. The appeal is brought under Section 136 of the Employment Protection (Consolidation) Act 1978, which governs appeals not only in employment cases but also in race and sex discrimination cases. That section provides:

"An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of,... an industrial tribunal..."... (under one of the specified Acts, including the Race Relations Act).

We asked Mr German to identify a question of law that arises on this decision. Mr German referred us in some detail to the points that were made in the proceedings on behalf of Mrs Leung-Clifford. He has taken us to detailed paragraphs of the decision and also to the examination of that decision in the pages attached to the Notice of Appeal. As appears from the Originating Application and the Notice of Appearance, Mrs Leung-Clifford had two complaints. The first in relation to her non-appointment to the post of Project Leader, the second in relation to the grievance procedure invoked by her. Those complaints are identified in the decision. The Tribunal set out in paragraph 3 of the decision their detailed findings of fact. They stated that the Applicant's ethnic origin was Chinese and that she worked for the Council's Bi-lingual Development Service and Consultancy (formerly the English Language Centre). They identified a white British woman, who had been appointed to the post, as the other main person involved in this matter. That was Mrs Elmufti. She was in charge of the reorganisation from the English Language Centre to the bi-lingual development service and consultancy. She was, at that time, Inspector of Bi-Lingual Learners on a two-year contract.

The Tribunal went chronologically through the relevant events starting with the decision of the Council to appoint a Project Leader for the service and the decision to advertise for and interview candidates for the post. It appears from the findings of fact that Mrs Elmufti prepared a list of duties for the job specification and a list of qualities for the person qualification. She also prepared a detailed description of the way in which the service was to be run. She gave that information to a Ms Simpson. It was too detailed to serve as a job description or person specification. Ms Simpson referred to the central personnel department of the Council, consulted a group appointed for that purpose under Section 11 of the Race Relations Act 1976, and drafted documents from the detailed documents submitted by Mrs Elmufti. They found that Mrs Elmufti was the most suitable person available for contributing the detailed work that she had provided.

The Tribunal set out the requirements as to qualifications. They referred to the fact that:

"It was recognised that in the appointment of Project Leader, the involvement of a representative of the black community was a requisite. Accordingly the respondents' Race Equality Team (a part of the Education Directorate) were invited to send an observer to the selection procedure in all its stages."...

The observer they sent was white, Ms Lisa Jones. She represented the choice made by the Race Equality team. The Tribunal decided that the Council had sufficiently discharged their obligations by ensuring representation approved by the team. The advertisement was placed. Applications were received from the post, including an application from Mrs Leung-Clifford. No shortlist was made. The position was re-advertised. A short-listing panel was appointed to make the selection in October 1992. Mrs Elmufti decided that she would apply for the post of Project Leader. The panel resolved on a shortlist. Both Mrs Leung-Clifford and Mrs Elmufti were included. They were both interviewed. Another shortlisted candidate was interviewed in November 1992 and a remaining candidate was interviewed on 20 November. Appointment to the post of Project Leader was then made. The successful applicant was Mrs Elmufti.

In an important passage in the Full Reasons, the Tribunal said that Mrs Elmufti was impressively qualified and experienced. They referred particularly to her management experience as counting in her favour. They said of Mrs Leung-Clifford that she was a strong candidate for appointment too, but only one could be appointed. The selection panel acted in good faith and upon sufficient grounds. The Tribunal went into the subsequent history of the deteriorating position in the service. They found that Mrs Leung-Clifford did not accept the appointment of Mrs Elmufti as Project Leader and would not recognise her authority. They gave details of the various events which led Mrs Leung-Clifford to raise a grievance on account of the appointment of Mrs Elmufti. They set out the history of the way in which that grievance was dealt with. They referred to various other matters relevant to their consideration of the case, including the shredding of documents relevant to Mrs Leung-Clifford's grievance. They said that it was the Council's policy to destroy six-month old documents, but observed that the grievance was still alive and the documents might be needed. The Tribunal thought that it was unwise to destroy the documents, but they did not regard this as a sinister step, and did not see how the destruction of the documents, whose existence could not be denied and whose destruction could not be denied, was anything but an embarrassment to the Council. It was not competent to decide to destroy the documents, but it was not malicious either.

The Tribunal completed the history of events in relation to the grievance procedure. It is unnecessary to dwell on the subsequent history in detail. Having completed the findings of fact, the Tribunal referred to the relevant statutory provisions and, apart from one slip in paragraph 5A of the Summary of Statutory Provisions where there is a reference to discrimination on the ground of sex, rather than discrimination on the grounds of race, we are unable to find any error in the direction that the Tribunal gave to itself on the correct legal approach to a complaint of racial discrimination. The Tribunal referred to the difficulties of proof by direct evidence, because no-one had admitted discriminating against Mrs Leung-Clifford or had said anything overtly discriminatory. They reminded themselves correctly that they had to look at all the circumstances to see if an inference of racial discrimination might be made from the primary facts. They asked themselves a correct series of questions in paragraph 5(c):

"... did the respondents treat the applicant differently from others or another, comparing like with like? was there a difference in race between them? was the different treatment on the ground of race?"

They again pointed out correctly that, in answering the third question, they should look to the Council for an explanation of the different treatment of one person compared with another of different race. In our view, there is no error of law or no question of law arising from those directions. The remaining question must therefore be whether there is any question of law arising from their application of those legal principles to the facts found. They dealt with that in paragraph 6. The Tribunal found, inevitably, that there had been a difference in the treatment of the two women. One had been appointed as Project Leader, the other not. They said that the circumstances of Mrs Elmufti's appointment were not immaculate. It would have been better if she had not seen the other candidates applications. They referred to the fact that, in their view, applicants for a post should be wholly outside the process of advertisement of selection, though that is not always possible where internal candidates are accepted.

In a crucial paragraph of their decision, paragraph 6(c) they said this:

"We found that Mrs Elmufti was appointed because the selection panel in good faith and on sufficient evidence believed that she was the best person for the job. Her formal qualifications and her experience are there to be seen in her application form. Her intelligence and articulateness were obvious to us; so was her strong belief in and commitment to the work. The preference for her over the applicant had nothing to do with the race of either."

They dealt with the grievance procedure and criticised the Council for not proceeding more quickly than they did. They found that the long drawn out handling of the grievance procedure was not influenced by Mrs Leung-Clifford's race. Finally, they dealt with a number of other complaints by Mrs Leung-Clifford about the Council and rejected those. We had to ask ourselves: what question of law arises from the decision? Mr German has argued the points summarised in the document attached to the Notice of Appeal. He started correctly by referring to Section 4(1)(a) of the Race Relations Act 1976 and emphasised that the complaint was about the "arrangements" for the purposes of determining who should be offered the job of Project Leader. Section 4(1)(a) provides:

"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another--

(a) in the arrangements he makes for the purpose of determining who should be offered that employment;"...

There were a number of criticisms made of the "arrangements". They appear from the Full Reasons; criticisms of the Council and they way they handled both the question of appointment and the grievance. It is important, however, to bear in mind that Section 4(1)(a) is governed by the word "discriminate". Discrimination is defined in Section 1. Whether it is direct or indirect, it is made clear that the treatment, of which complaint is made, must relate to racial grounds. If it is direct discrimination it must be shown that, on racial grounds, one person has treated another less favourably than he treats or would treat others. Similarly, in relation to indirect discrimination, there must be a racial reason for the disparate treatment. Mr German, on that basis, made criticisms of the decision. He referred to the Commission for Racial Equality's code of practice and the important provisions that should be observed by employers. He criticised the Tribunal in their comments on the shredding of documents by the Council. That act by the Council prevented comparisons from being made. He criticised the Council in relation to the representation by a black person in relation to the appointment. He gave details of a number of points on which he said there had been inadequate consideration by the Industrial Tribunal. He submitted that, in the absence of documentary evidence by the Council, because they had destroyed crucial evidence. The Tribunal failed to treat one of the witnesses, Mr McCann, as a discredited witness. The Tribunal had not really addressed properly the strength of the evidence adduced to support Mrs Leung-Clifford's case or the weaknesses in the Council's evidence, which would assist Mrs Leung-Clifford in establishing a case of race discrimination.

We appreciate that all these points were made to the Tribunal so far as they related to the Council's involvement in the appointment of the Project Leader and in the handling of the grievance procedure. We appreciate that Mrs Leung-Clifford is disappointed by the decision of the Tribunal to reject her case. Those facts alone are not enough to establish that there was a legal error in the Tribunal's decision. The fact is that what is really complained about in the details attached to the Notice of Appeal and in Mr German's submissions, is the Tribunal's decision not to accept certain arguments and points of evidence presented by Mr German to the Industrial Tribunal.

As we pointed out to Mr German during the hearing, the Industrial Tribunal's duty is to hear the witnesses give evidence, to decide what weight they attach to that evidence, and then to decide what inferences they draw from it and ask themselves the correct questions relevant to racial discrimination. It is not, we would emphasise, for the Appeal Tribunal to allow, on an appeal, a re-hearing of the case unsuccessfully advanced to the Industrial Tribunal. We are simply not able to do that under the limited powers available to us. We do not hear witnesses. We do not decide questions of fact. We therefore cannot second-guess findings of fact by the Tribunal that has heard the witnesses, particularly over a long period of a hearing. We can only interfere if there is a question of law arising from this decision. Mr German has not been able, despite energetic efforts on his part for Mrs Leung-Clifford, to identify any legal error in this detailed decision. It is not a legal error for a tribunal to attach less weight to a point than a party attaches to it, or to attach more weight to another sides point than a complaining party attaches to it. The Tribunal have decided, as a fact, that there was no racial reason entering into the decision not to appoint Mrs Leung-Clifford to the position of a Project Leader. There was no racial reason entering into their handling of her grievance. In those circumstances we do not think that there is an arguable legal point on this appeal. There is no point in it proceeding to a full hearing. The result is inevitable. This appeal will fail because there is no legal question in it. We dismiss the appeal at this stage.