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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Qureshi v Victoria University Of Manchester & Anor [1996] UKEAT 484_95_2305 (23 May 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/484_95_2305.html
Cite as: EAT 484/95, EAT/484/95, [2001] ICR 863, [1996] UKEAT 484_95_2305
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At the Tribunal
Judgment delivered on 21 June 1996
THE HONOURABLE MR JUSTICE MUMMERY (P)
MRS R CHAPMAN
MR P DAWSON OBE
(2) PROFESSOR R BRAZIER
JUDGMENT
Revised
APPEARANCES
For the Appellant MR P DUFFY
(of Counsel)
Fatima Thobani & Co
Kingsgate Place
LONDON NW6 4JH
For the Respondents MR M LAPRELL
(of Counsel)
Addleshaw Sons & Latham
Dennis House
Marsden Street
MANCHESTER M2 1JD
MR JUSTICE MUMMERY (PRESIDENT) This appeal is against the decision of the Industrial Tribunal held at Manchester over a period of 15 days between 27th April and 5th December 1994. Extended Reasons, running to 70 pages, were sent to the parties on 28th March 1995. By a majority the Tribunal reached the following conclusions -
(1) Neither the Victoria University of Manchester ("the University") nor Professor Brazier had directly discriminated against the Applicant, Dr A H Qureshi, on racial grounds within the meaning of S.1(1)(a) of the Race Relations Act 1976 ("the 1976 Act").
(2) Neither the University nor Professor Brazier had discriminated against Dr Qureshi by way of victimisation on the grounds that he had brought proceedings against them or either of them within the meaning of S.2(1)(a) of the 1976 Act.
(3) The University had not discriminated against Dr Qureshi by way of victimisation by reason that he had done anything under or by reference to the 1976 Act in relation to the University or Professor Brazier or any other person or alleged that they or any person had done anything which contravened the 1976 Act within the meaning of S.2(1)(c) of the 1976 Act and S.2(1)(d) of the 1976 Act.
(4) Professor Brazier had subjected Dr Qureshi to a detriment within the meaning of S.4(2)(c) of the 1976 Act by rejecting his complaint of failing to sponsor him for promotion made in late 1992 and early 1993 and did so by reason that the Applicant had alleged that the Faculty Review Committee (FRC) and Professor Brazier had committed an act which would amount to a contravention of the 1976 Act within the meaning of S.2(1)(c) of that Act and was acting in the course of his employment in so doing.
(5) The other allegations that Professor Brazier had discriminated against Dr Qureshi by reason that he had done something under or by reference to the 1976 Act in relation to the University or Professor Brazier or any other person were not well founded.
(6) Issues of remedy were adjourned.
On 4th May 1995 Dr Qureshi served a Notice of Appeal setting out numerous grounds on which it is argued that the Industrial Tribunal misdirected itself in law or misapplied the law.
On 23rd July 1995 both Respondents served an answer and a cross-appeal against the Tribunal's decision that Professor Brazier had acted to the detriment of Dr Qureshi for the reasons set out in paragraph 64 of the Extended Reasons.
The appeal has been well argued on each side. Mr Peter Duffy, who did not appear before the Industrial Tribunal, argued the appeal on behalf of Dr Qureshi. Mr Laprell appeared for both the University and Professor Brazier in the Industrial Tribunal and on the appeal.
The Industrial Tribunal Proceedings
There were two sets of proceedings before the Industrial Tribunal. They were heard together.
A The 1993 application
The 1993 application (supported by the Commission for Racial Equality) was presented to the Industrial Tribunal on 13th January 1993. The claim was against the University for race discrimination and victimisation. (Dr Qureshi is of Pakistani origin). The date given for the alleged act of discrimination was 19th October 1992. That was the date on which Dr Qureshi received a letter dated 12th October 1992 from the Dean of the Faculty of Law at the University (Professor Brazier) informing him that the FRC had unanimously decided not to support a recommendation for his promotion from the post of a Lecturer in International Fiscal Law to the post of Senior Lecturer.
In addition to the claim that that was race discrimination, Dr Qureshi stated that there was victimisation, because of his complaint to the Registrar in 1989 about racial discrimination in University recruitment practice for professors.
The application also contained a more general allegation of unfavourable treatment on occasions when Dr Qureshi was subject to abuse at Faculty Board Meetings when attempts were made to use, for departmental purposes, money allocated for research and expenses associated with his post.
B The 1994 proceedings
Dr Qureshi presented a second application a year later on 17th January 1994. The Respondents to that application were the University and Professor Brazier, in his capacity as Dean of the Law Faculty. The date of the discriminatory act of which complaint was made was stated to be 26th October 1993. That was the date when Dr Qureshi was informed by letter from the Dean that he had decided not to put Dr Qureshi's name forward to the Academic Promotions Committee (APC) with a favourable recommendation for promotion to Senior Lecturer. The reason given was that a case could not be made out to support his promotion in the light of responses received from 12 referees who had been approached.
Dr Qureshi alleged that the pending Industrial Tribunal application had influenced the actions of the University and Professor Brazier and that he had been subjected to less favourable treatment in the promotion exercise.
Dr Qureshi's second application also included allegations of further victimisation during 1992 in the terms of the allocation of excessive teaching duties and that he had been denied access to the grievance procedure and a formal inquiry.
Further details of victimisation were added about events in February 1994 - the rejection of an application for study leave, unusual scrutiny and criticism of his examination papers at an Examination Scrutiny Meeting and an advertisement for a Senior Lectureship in the Department placed externally.
Industrial Tribunal Approach
Both the 1993 and the 1994 applications were contested on the grounds set out in the Notices of Appearance in each case. The allegations of less favourable treatment, racial discrimination and victimisation were emphatically denied. In addition to the acts of discrimination complained of in the Originating Applications, the Tribunal heard evidence of numerous incidents alleged to have occurred from 1988 onwards and relied upon by Dr Qureshi as evidence that the University had committed the alleged acts of discrimination against him on racial grounds. The Tribunal considered each of those incidents in detail in the course of the Extended Reasons, made findings of primary fact and came to conclusions as to whether Dr Qureshi had received less favourable treatment and, if so, whether it was on racial grounds. In relation to many of the incidents the members of the Tribunal failed to reach unanimous decisions. The issues and sub-issues arising on the actual allegations in the Originating Applications were set out in the form of Questions and Answers in paragraph 168 (pages 64 - 69 of the Extended Reasons). Most of the questions posed were given a simple `yes' or `no' answer, reflecting the division of views amongst the members on the numerous allegations and incidents considered in detail in earlier parts of the Extended Reasons.
To take just one example from p.67, the Tribunal resolved the allegation of racial discrimination and victimisation in relation to the Dean's decision not to recommend Dr Qureshi for promotion to Senior Lecturer in the following way -
"2. Was the Dean's decision not to recommend him for promotion to Senior Lecturer on 26th October 1993 less favourable treatment? - Yes
If so, was it done on the grounds of his race? The majority say "No".
Was it done on the grounds of his complaint about the procedure for appointing Professors or on the grounds of his complaints to the Tribunal in January 1993? - The majority say "No it is explained". One member says "Yes".
(i) Was the request for an unusually high number of referees less favourable treatment? The minority member says "Yes". Two members say "No".
Was it done on the grounds of his race? "Yes"
Was it done on the grounds of his complaint about the procedure for appointing Professors or on the ground of his complaints to the Industrial Tribunal? "Yes, on the grounds of his complaint to the Tribunal".
Those questions and answers have to be read in the context of the preceeding 167 paragraphs in which the Industrial Tribunal set out their findings of primary facts on each allegation and the inferences made in respect of the reasons for less favourable treatment concerning individual incidents.
Amendment to the Notice of Appeal and the Cross-Appeal
Before we deal with the main grounds of the appeal, there are two matters we should resolve.
A Amendment to the Notice of appeal
Mr Duffy, on behalf of Dr Qureshi, sought leave to amend the Notice of Appeal to include a further ground (paragraph 1(xvii). Mr Laprell did not oppose the amendment nor did he seek to advance any substantive argument against the correctness of the point of law taken in it. The amended ground reads -
"The Tribunal erred in law in concluding that the first respondent did not discriminate against the appellant under S.2 of the Race Relations Act 1976 in the context of the finding that the second respondent did so discriminate against the appellant. At paragraph 64 the Tribunal found that the second respondent's rejection of the appellant's complaint of race discrimination amounted to discrimination by way of victimisation. The Tribunal went on to find that "...the Dean would be acting within the course of his employment in dealing with the complaint". By virtue of S.32(1) of the 1976 Act "...anything done by a person in the course of his employment shall be treated for the purposes of this Act ...as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval." Following the findings made by the Tribunal it should therefore have concluded that the first and second respondents had discriminated against the appellant by way of victimisation under S.2 of the 1976 Act."
On this point, therefore, there was an error of law by the Industrial Tribunal on the question of vicarious liability, unless the cross-appeal by Professor Brazier against the finding of victimisation against him succeeds. We deal briefly with the cross-appeal at this point.
B Professor Brazier's cross-appeal
The only part of Dr Qureshi's claim which succeeded in the Industrial Tribunal was the complaint of victimisation against Professor Brazier in rejecting Dr Qureshi's complaint of failing to sponsor him for promotion in late 1992 and early 1993. The reasons for this conclusion are set out in paragraph 64 of the Extended Reasons. The paragraph refers to two letters which we have read in full. The first letter is dated 4th January 1993 and was sent by Dr Qureshi to Professor Brazier, as Dean of the Faculty of Law. The letter states -
"Further to your letter dated 20th October 1992, in which you outlined the University procedure for appeals for promotion to Senior Lecturer, this is to inform you that the procedure outlined is not satisfactory. The University is under an obligation to provide me both with substantive and procedural justice. This it has not done.
In the circumstances I have no option but to turn outside the University for assistance. I will therefore be lodging a formal complaint against the University and the Faculty to the Commission for Racial Equality. There has been in my opinion a consistent pattern throughout my experience at the Faculty, of racial discrimination. I will outline to the Commission and through the Commission, the pattern of discrimination that I feel I have been the subject of. Further, it is my view that you have not assessed my CV properly and/or interpreted University criteria correctly.
As you know in the past I have worked from within to reform the various systems in the University and the Faculty. I regret on this occasion that my patience has snapped, and I am no longer interested in working from within to resolve issues.
Please note also regardless of whether or not I am employed at the University, I will pursue this matter to its logical conclusion."
Dr Qureshi sent a copy of the letter to the Registrar.
Professor Brazier replied on 7th January 1993 in these terms -
"I was distressed to receive your letter of 4th January 1993. Your suggestion that your non-promotion to Senior Lecturer is the result of racial discrimination in the Faculty is nonsense, and I emphatically reject it. I have no idea what you mean by a "consistent pattern" of such discrimination in the Faculty.
In view of the seriousness of your allegations and of the step which you are taking, I am letting the Registrar and the other Professors have a copy of our letters and I expect to discuss the whole matter with the Registrar.
May I repeat that, as always, I am more than ready to help in any way possible with the development of your career."
The conclusion of the Industrial Tribunal on Professor Brazier's letter was stated as follows in paragraph 64:-
"...two members find that there is again no acknowledgement that prejudice can work unconsciously as well as deliberately and an eagerness to deny the applicant's allegations without even finding out the basis on which they are made. Professor Brazier does not appear to have consulted the University Equal Opportunities Officer when he saw the allegation. He is generally a mild mannered and thoughtful man. The majority members accept that the applicant's complaint was rejected outright by Professor Brazier because it was complaint of racial discrimination and not a complaint of some other sort. That is a detriment to the applicant in our view within the meaning of S.4(2)(c) of the Act and was by reason that the applicant had alleged that the Dean and the FRC had discriminated under the 1976 Act within the meaning of S.2. The Dean would be acting within the course of his employment in dealing with the complaint. One member draws the inference that was also on racial grounds."
The matter was referred to again on p.67 of the decision as part of the resolution of issues in paragraph 168:
"...In respect of Professor Brazier's rejection of his complaints of his failure to sponsor for promotion in late 1992 and early 1993 two members find that it was a detriment to the applicant which was less favourable treatment of the applicant by reason that he had alleged that the FRC and Professor Brazier had committed an act which would amount to a contravention of the Race Relations Act 1976."
The grounds of the cross-appeal served on 23rd July 1995 were that the Tribunal had reached an unreasonable conclusion in inferring that Professor Brazier's denial that the failure to promote constituted race discrimination was itself made because the Applicant alleged discrimination. The Tribunal failed to take account of the fact that the decision as to whether to recommend promotion was a decision of the Dean of Faculty (Professor Brazier), following the advice of the FRC. The criticism that Professor Brazier ought to have investigated the complaint, in so far it alleged discrimination, before refuting it was without foundation. The Tribunal failed to take any account of the fact that the allegation of discrimination was held to be ill-founded. Further, whilst it may be good practice to investigate such a complaint, the failure to do so does not justify the conclusion that it was an act of discrimination/victimisation not to do so. It was therefore contended that the decision that Professor Brazier had acted to the detriment of Dr Qureshi on the grounds that the allegation was one of victimisation was perverse. In his oral submissions Mr Laprell submitted the Tribunal's finding against Professor Brazier was flawed by error of law. The consequence of its reasoning in paragraph 64 was that, whenever a complaint of racial discrimination is rejected by the person accused, it can always be said that the complaint was rejected because it was a complaint of racial discrimination. If this were right, allegations of racial discrimination which may be unjustified (as was the case here) become self proving, if strenuously denied by the alleged discriminator without ordering a full investigation of the allegation.
It is unnecessary for us to examine the cross-appeal in any more detail because it was accepted by Mr Duffy, on Dr Qureshi's behalf, that if his appeal succeeded on the broad ground advanced by him that the Tribunal had erred in law in its whole approach to the allegations of racial discrimination and victimisation, then the decision on the cross-appeal would also be flawed and the cross-appeal should be allowed.
For reasons stated below, we have decided that the appeal (and therefore the cross-appeal) should be allowed because the Industrial Tribunal erroneously adopted an impermissible piecemeal approach to the determination of the crucial fact in issue in the case, namely, whether the acts complained of by Dr Qureshi against the University and Professor Brazier were on the grounds of Dr Qureshi's race or were acts of victimisation within the meaning of S.2 of the 1976 Act.
The Submissions of Dr Qureshi
The nub of Mr Duffy's submission on Dr Qureshi's appeal was that the Industrial Tribunal wrongly adopted a piecemeal approach to Dr Qureshi's complaints of race discrimination and victimisation. By adopting the wrong approach from the outset the Tribunal had made a difficult task for an applicant in an institutional race discrimination case even more difficult. Mr Duffy's criticism started with Tribunal's definition of its own task in paragraph 2 of the Extended Reasons where they said -
"We have to decide in respect of each allegation whether on racial grounds the respondents (or either of them in some cases) have treated the applicant less favourably than they treat or would treat other persons or in the alternative whether the respondents have treated the applicant less favourably than they treat or would other persons by reason that the applicant has brought proceedings against the respondent under the 1976 Act. Finally, we have to decide whether the respondents have treated the applicant less favourably than they treat or would treat other persons by reason that the applicant has done anything or by reference to the 1976 Act in relation to the respondents or any other person or made allegations of race discrimination."
Mr Duffy's principal criticism is of the manner in which the Industrial Tribunal then proceeded to apply the defined approach in relation to every allegation made by Dr Qureshi, rather than solely in respect of the particular acts complained of in the Originating Applications. He submitted that the stated approach was only appropriate in respect of the specific complaints in the Application. As a consequence of this erroneous approach, the Industrial Tribunal made full findings in relation to each of the allegations and then, depending on the finding it had made, it concluded there and then whether any inference should be drawn from the facts underlying that individual allegation. Where the Tribunal concluded that no inference could be drawn from the primary facts surrounding the individual allegation, it did not carry forward those primary facts into the critical process of making an overall inference of the grounds of action or decisions from the totality of primary facts.
In brief, the Industrial Tribunal had adopted a fragmented approach. That failed to take account of the overall context of the complaints in the case. It also failed to take account of the fact that there may be racial discrimination, even though race or the fact that Dr Qureshi had brought proceedings under the 1976 Act may not have been the sole cause of the less favourable treatment of which he complained. As a result of this approach, the Tribunal failed to investigate whether race or the 1976 Act proceedings was an operative or effective cause (though not the only cause) for the decision or action taken of which Dr Qureshi complained. Mr Duffy accepted that generally the question whether an Industrial Tribunal has drawn the right inferences from the findings of primary fact is a question of fact which cannot be appealed. His complaint on the appeal was that the Industrial Tribunal, by adopting a piecemeal, fragmented, compartmentalised, narrow approach, had effectively made it impossible for itself to draw any inference from the totality of the primary facts found and give them sufficient weight in the determination of the question whether Dr Qureshi had established that grounds of race or victimisation were an effective or operative cause of the actions complained of in his Originating Applications.
In our judgment, Mr Duffy's criticisms are valid. They have been made good in his oral submissions by references to detailed passages in the extended reasons. We shall select a few of the passages to exemplify the self-limiting, restrictive approach taken by the Industrial Tribunal in the determination of Dr Qureshi's complaints.
(1) In paragraphs 6 - 10 of the Extended Reasons the Tribunal dealt with an allegation by Dr Qureshi about the failure of the then Dean of the Faculty in 1988 (Professor White) to consult Dr Qureshi about suggestions for uses of the extra funds associated with his post (the "new blood dowry money"), before writing a memorandum to members of the staff inviting suggestions for uses of that money. Dr Qureshi's point was that, as the money was entirely linked to his appointment, he should have been the only one consulted about the expending of it and that Professor White (then Dean of the Faculty) had acted in a manner which under-valued Dr Qureshi's advice and rights in relation to that money, because he was Asian. In paragraph 10 the Tribunal stated its conclusions on this allegation as follows -
"...We accept that it may not have been right for Professor White to attempt to open up the discussion about the use of the dowry money in the way in which she did. However, 2 members of the Tribunal came to the conclusion that they do not draw any inference from the limited facts which have been proved that there was any racial element to the decisions or actions in respect of this matter. They find there is no evidence of any really comparable case where the respondents' actions in respect of a white lecturer can be clearly seen. ..."
(2) In paragraph 12 of the Extended Reasons the Tribunal dealt with an allegation arising out of the appointment of a Ms Redgewell to the position of a lecturer. Dr Qureshi formed the view that there was some personal favouritism at work in the appointment. It was submitted on Dr Qureshi's behalf that the facts surrounding the appointment gave rise to an inference of discrimination which the Tribunal should take into account as showing an discriminatory ethos in the Faculty. The Tribunal stated in paragraph 12 -
"...We rule that the agreed facts were not sufficient to give rise to any clear inference at all and that the exercise Mr Whitmore [Dr Qureshi's then representative] was inviting us to embark on would require a detailed examination of the reasons for selection of Ms Redgewell in 1987 which was entirely inappropriate and would be oppressive to the respondents in expecting them to deal with such detail six or seven years after the event. We therefore ruled that we would ignore the applicant's assertions as we found that they did not assist his case at all. ..."
(3) In paragraph 17 the Tribunal dealt with a dispute which arose from Dr Qureshi's position that it would be better if the examination scripts were anonymised before being marked. The proposal was opposed, tempers were lost and there were angry reactions to a suggestion by Dr Qureshi about a "climate of racism". On this allegation the Tribunal said this -
"...The majority of the Tribunal accept that the applicant was subjected to the detriment of people in the Faculty meeting angrily and being offended when he raised concerns about equal opportunities in 1989 and 1990. The majority draw the inference that it was on the grounds of his race because they found that the respondents have not explained the heated reactions to the suggestions. We unanimously however find that these complaints are too old to form the basis of relief. The detriment which the applicant suffered was that he was subjected to others' anger and offence in 1989 and 1990. We do of course have to bear this in mind when we find less favourable treatment on other occasions later, as it is a strong indication from which to draw the inference that the treatment was on the grounds of race or under Sections 2(1)(a), (2)(c) or 2(1)(d) ... ."
(4) Another instance to this approach occurs in paragraph 39 where the Tribunal deal with an allegation by Dr Qureshi against the then Dean of the Faculty (Professor Ogus) that the Dean did not specifically tell Dr Qureshi in a letter to him to submit a further CV immediately and expressly, because the FRC were willing to convene another meeting that term (Summer 1992). In paragraph 39 of the Extended Reasons the Tribunal said this -
"Two members of the Tribunal do not accept that there can be any criticism of failing to explain that to the applicant and are not prepared to draw any inferences from that failure. They feel that the applicant is an intelligent man and there was no reason why he should not take the point up about how urgent it was if he was in any doubt. They find any urgency was obvious to him and he chose to leave the reply for what he regarded as good reasons at the time. ..."
In paragraph 40 it is stated that one member of the Tribunal felt that Professor Ogus should have conveyed to the Applicant that the FRC could meet again in that term to consider his application and that the failure to make that clear was in fact as the result of a careless attitude with regard to the Applicant's application for senior lectureship which was significantly different from the attitude towards the applications of the white lecturers. The dissenting member drew the inference that that difference in approach was on the grounds of the applicant's race.
These are a few illustrations of the manner in which the Tribunal proceeded to deal piecemeal with about 30 different allegations made by Dr Qureshi against the University and its staff.
The Correct Approach
Mr Duffy submitted, by reference to the authorities, that this piecemeal approach was contrary to the guidelines given in the cases. The appeal should, accordingly, be allowed and the whole case remitted for rehearing by a differently constituted Industrial Tribunal. As already indicated, we see no alternative to that course. This is particularly unfortunate in a case which has already taken 15 days of the parties' time and the Tribunal's time at the hearing in 1994. A remitted hearing will take place following further delay. It will take more time and cost more money.
Unfortunately, this, in the experience of the Appeal Tribunal, is not an isolated case and it may be helpful to add a few words to the guidance for Industrial Tribunals already contained in the cases cited by Mr Duffy.
Ever since the Court of Appeal's decision in King v. Great Britain China Centre [1992] ICR 526 the Industrial Tribunals and this Tribunal have found an invaluable and frequent source of assistance in the passage in the judgment of Lord Justice Neill on p.528E to 529C where he summarised the principles and guidance extracted from the earlier authorities.
It is worth setting out that passage in full because nothing which we wish to say should be regarded as doubting or diminishing in any way the accuracy, clarity and value of that guidance. Lord Justice Neill stated the position as follows_
"...From these several authorities it is possible, I think, to extract the following principles and guidance,
(1) It is or the applicant who complains of racial discrimination to make out his or her case. Thus, if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in".
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with S.65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Health Thames Health Authority v. Noone [1988] ICR 813, 822, "almost common sense".
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
In addition to that passage we have also been referred to the following cases: Owen and Briggs v. James [1982] ICR 618; R v. Commission for Racial Equality ex parte Westminster City Council [1984] ICR 770; London Borough of Barking and Dagenham v. Camara [1988] IRLR 273; North West Thames Regional Health Authority v. Noone [1988] 813; Qureshi v. London Borough of Newham [1991] IRLR 264; Chapman v. Simon [1994] IRLR 124 and Leicester University Students Union v. Mahomed [1995] ICR 270.
On the basis of (a) those authorities, (b) the experience of the members of this Tribunal and (c) the experience of the parties, the advisers and the Tribunal in this case, we tentatively add the following observations and thoughts to the guidance in Neill LJ's judgment in King v. Great Britain China Centre -
(1) The complaint
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. If the applicant fails to prove that the act of which complaint is made occurred, that is the end of the case. The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application. See Chapman v. Simon (supra) at paragraph 33(2) (Balcombe LJ) and paragraph 42 (Peter Gibson LJ). In this case the principal complaints made by Dr Qureshi were the decision of the FRC not to support a recommendation for his promotion to the post of senior lecturer in October 1992 and the decision of the Dean of the Law Faculty in October 1993 not to put his name forward to the APC with a favourable recommendation for promotion to senior lecturer. The considerations of the Tribunal and their decision should, therefore, focus on those complaints and on the issues of fact and law which have to be resolved in order to decide whether the complaints are well founded or not.
(2) The issues
As the Industrial Tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision eg,
(a) Did the act complained of actually occur? In some cases there will be a conflict of direct oral evidence. The Tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the applicant is believed, has he brought his application in time and, if not, is it just and equitable to extend the time?
(b) If the act complained of occurred in time, was there a difference in race involving the applicant?
(c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial racial group in the same, or not materially different, relevant circumstances?
(d) If there was a difference in treatment involving persons of a different race, was that treatment "on racial grounds"? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent?
In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.
(3) The evidence
As frequently observed in race discrimination cases, the applicant is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions. The Applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional. The Tribunal must consider the direct oral and documentary evidence available, including the answers to the statutory questionnaire. It must also consider what inferences may be drawn from all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision. It is this aspect of the evidence in race relations cases that seems to cause the greatest difficulties. Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits? This case is an illustration of the problem. The complaint of racial discrimination is usually sparked by a core concern of the applicant: in this case his failure to obtain support and recommendations for his promotion to a senior lecturer in the Faculty of Law. Dr Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years, from 1988 to 1994. The incidents relied on by him ante-date, accompany and post-date the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the Tribunal to find the facts relating to those incidents. They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue namely, whether the acts and decisions complained of in the proceedings were discriminatory "on racial grounds". The function of the Tribunal in relation to that evidence was therefore two-fold: first, to establish what the facts were on the various incidents alleged by Dr Qureshi and, secondly, whether the Tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of. The temptation for the complainant and his advisers, in these circumstances, is to introduce into the case as many items as possible as material from which the Industrial Tribunal might make an inference that "racial grounds" are established. The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inference of racial grounds eg, non-racial explanations for his acts and decisions. The result of this exercise is that the parties and their advisers may confuse each other (and the Tribunal) as to what the Tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background. It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, even eclipsed. In practical terms this may lead the case to run on and on for many days or weeks. In the experience of this Tribunal, the longest cases heard in the Industrial Tribunals are cases of racial discrimination.
(4) Inferences
The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. In Chapman v. Simon (supra) at paragraph 43 Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences. He said -
"...Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the Tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion." (See also Balcombe LJ at para. 33(3)
In the present case, it was necessary for the Tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to inferences and then for the Tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds". The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference. The Tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.
Conclusion
The additional comments are intended to provide some assistance to the Tribunal to whom this case is remitted (and to other Tribunals) in deciding what are, in our view, the most difficult kind of case which Industrial Tribunals have to decide. The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing. The accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others. In our experience, the Industrial Tribunals discharge this delicate, difficult function conscientiously and carefully. It should not be regarded as a criticism on the Chairman and members of this Tribunal that we have found their lengthy, conscientious and detailed decision, taken after many hearing days and many hours of deliberation, to contain an error of law.