United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 512_95_0907

Appeal No. EAT/512/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 July 1996

Before

THE HONOURABLE MR JUSTICE BUCKLEY

MR J A SCOULLER

MR S M SPRINGER MBE

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MR K DAVIS          APPELLANT

NORTHAMPTON CC & SOCIAL SERVICES INSPECTION UNIT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS C HYDE

(of Counsel)

Ms J Sebastian

Wellingborough District

Racial Equality Council

c/o Victoria Centre

Palk Road

Wellingborough

Northants NN8 1HT

For the Respondents MR VICTOR SMITH

(Solicitor)

Legal Services

Northamptonshire County

Council

County Hall

George Row

Northampton NN1 1DN


 


MR JUSTICE BUCKLEY: By a decision and extended reasons dated 6 April 1995 the Industrial Tribunal at Bedford dismissed the Appellants's case, which was that he had been discriminated against on racial grounds.

Mr Davis, the Appellant, had worked for the Respondents, Northamptonshire County Council, since 1980. He is black and he applied for a further job within the Council. The job was as senior inspector in the Social Services Inspection Unit. He was not short-listed. He was not a little surprised by that because he considered that he met all the necessary criteria and he raised the matter through the Council's grievance procedure when he was given some explanation. He was not satisfied by that, hence his application.

Miss Hyde, who has appeared in support of this appeal before us, identified three bases for the appeal. Firstly, that there are insufficient reasons set out so that, in short, Mr Davis did not really know why he had lost, secondly, a misdirection and, thirdly, perversity.

In the event we only needed to hear Miss Hyde on the first ground, that was not simply because the hour was late but because we were persuaded ultimately by her submissions. True it is, had she succeeded on perversity, we might have been able to decide the matter ourselves but, having read the report, the reasons and all the papers very carefully, we could not conceive that we would have been satisfied on that ground.

Mr Smith appeared for the Respondents and we are very grateful to him, also, for his very clear and, although ultimately, unsuccessful, very persuasive submissions.

What it comes to is this: the Tribunal purport to set out the facts of what happened and they then conclude by saying that having heard all the evidence, bearing in mind the facts which they find, they are not prepared to draw an inference of racial discrimination.

At the end of the day we are satisfied that the Tribunal should here have explained why they were not prepared to draw that inference. It is common ground between the parties that the Tribunal were not bound to draw the inference. They were entitled in one sense, that is, theoretically, to come to the view they did but when a Tribunal draws or fails to draw such an inference it is incumbent upon them, particularly, in this type of case, to indicate why, so that the Appellant knows why he or she has lost.

Mr Smith's submission was to the effect that when you read the reasons as a whole, as a matter of necessary implication, one can see that they must have simply accepted the Respondent's explanations or reasons for not short-listing Mr Davis. That is a distinct possibility but we do not put it any higher than that. If we had been persuaded that that was a necessary inference to be drawn, then these reasons might have passed muster but we say again, in cases of this type it is an undesirable approach, in any event, to rely on necessary inference of that sort. It is far better to indicate, however shortly and however informally, why it is that an inference which is there to be drawn is not.

The reason we put it that way is based solely on the extended reasons. Mr Smith developed to some extent a submission that the reasons were unduly harsh on the Respondents. He was the first to recognize that it was not really open to start going behind the reasons as given but he felt sufficiently motivated to make that submission. On the documents that we have seen it may well be that he is right about that but we cannot, ourselves, go behind the reasons. We stress that our comments are based only on the reasons as given.

What the Tribunal found is, first of all, certain essential qualities were considered and matched against the applicants, some 30 in all and that that reduced them to 15. Those involved in the selection process, that is, a Mrs Guest and Mr Ward, decided, doubtless wisely, that that short-list was not short enough and so they had regard to certain other selection criteria, so called "desirable qualities" to be found in the successful candidates. What they did was they selected some only of the Council's recorded desirable qualities and decided to apply or match those against the 15 and see where that took them. That process, in fact, reduced the short-list from 15 to 11 and those 11, as we understand it, were duly interviewed. It seems that Mr Davis just missed the list and, therefore, it was that last reduction that caught him out.

As to that process, the Tribunal found that it was arbitrary and could well have been an unfair process. The reason they said that is not entirely clear, it seems to be simply because Mrs Guest and Mr Ward were selecting three desirable criteria, adding one further of their own and applying those to the candidates and not having any regard to the eight other desirable qualities which are recorded and identified by the Council and the Tribunal clearly felt that simply selecting three or so of the eight and not having regard to all of them, was arbitrary and could be very unfair. Theoretically, one can see that but, of course, it may be that Mrs Guest and Mr Ward attached particular importance to the ones they selected. We simply do not know.

At all events, the Tribunal's finding was that that was arbitrary and potentially unfair. That was the first major criticism they make of the whole process.

Mr Davis discovered that he was not short-listed and triggered the grievance procedure and had a meeting with a Mr Crich, who had made some notes which were produced of the meeting on 16 July 1993. We do not need to go into that, suffice it to say the Tribunal, again, have some fairly trenchant criticism of that procedure and the outcome of it and what Mr Davis was told, not only in the grievance procedure but, when he asked for advice as to how he should go about ensuring that he met the necessary criteria for the future.

Yet further criticism, is levelled at the Respondents because there appear to be no surviving notes of the process, that may have been made by either Mr Ward or Mrs Guest. That, we do find surprising and was a source of criticism.

We think it helpful just to recite the concluding paragraph of the reasons. It is in these terms:

"Mr Davis complains of race discrimination under the Race Relations Act 1976, Sections 1(1)(a) and 4(2)(b). We fully understand Mr Davis' dissatisfaction with the position and fully understand that, since he is black, he is inclined to attribute this to his colour. However having heard all the evidence we are not prepared to draw that inference. We appreciate that had we been in his shoes we would probably have felt the same as him but this does not in itself justify us in making a formal finding of race discrimination. We think the right thing to do is merely made the findings of fact referred to above. The respondents will perhaps bear these facts in mind and improve their procedures. It should be clear from the above what steps we consider they should now take."

Any disappointed applicant reading these reasons would observe three or four paragraphs out of six, of undiluted criticism of his treatment at the hands of the Respondents, including the grievance procedure, followed by the statement we have just read out, that had the Tribunal been in his position they would have felt just the same as he did and yet they say they are not prepared to draw the inference that he invites them to draw.

Again, we say that it is common ground that the Tribunal were not bound to draw the inference but, if in the circumstances of this particular case and this type of reasoned award, they decline to do so, we do all feel that it was incumbent upon them, however shortly, to say why. As we have indicated, Mr Smith has urged that by necessary implication it can only be that they have accepted the reasons the Respondent gave, namely, that they applied criteria which they perceived that Mr Davis did not meet. It may well be that that is the explanation. There are, of course, other possible candidates. It may be that having heard evidence from some of the Respondents' witnesses, they were impressed by that evidence, although there is no hint of that in the reasons. It may be that they had in mind that there were others who were caught by the final guillotine in the selection process who they believed were white, and we understand that is the case, it may be that they felt, therefore, that however unfair the Tribunal perceived the process to be, it was unfair to black and white alike. Again, we do not know. There may be some other reason but we can only say that we think the bold leap from several paragraphs of trenchant criticism of the Respondents' procedures to the conclusion that they are not prepared to draw the necessary inference, is one that, though it may well be justifiable, does need to be explained.

We say not more. We feel that this must go back for a rehearing. Mr Smith did submit that, in the circumstances of this case, although the norm would be to go to a new and differently constituted Tribunal, this should perhaps go to the same one because it was really a case of simply expanding their reasons. We were initially attracted to that submission, particularly as there has been some delay in this matter already. However, not least because there has been some delay, we think it might cause even further problems if the same Tribunal has to be reconstituted. We are not at all sure how easily that could be done. Secondly, in view of the criticisms which we have said enough about, we think Miss Hyde is correct that, if it goes back to the same Tribunal, it would be unsatisfactory from her client's point of view, at any rate. In all the circumstances, we think it is more satisfactory for this to go back to a new Tribunal.