United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S THEMIS (Free Representation Unit) Field Court Chambers 2nd Floor 3 Field Court Gray's Inn London WC1R 5EP
For the Respondents	MISS J EADY (of Counsel) The Solicitor Inland Revenue East Wing Somerset House The Strand London WC2R 1LB


 


MR JUSTICE LINDSAY: On 26th February 1996, Mrs Rachel Robson, an Irish lady, made a complaint in Form IT1 against a colleague of hers, Nicola Hodgson, an employee of the Commissioners of Inland Revenue. It was a very full complaint, some seven pages or so of narrative handwriting. Later the complaint was extended to relate also to another employee of the Inland Revenue, Paul Atkins, and later still to include the Inland Revenue itself, Mrs Robson's employer.

On 20th January 1997 there was promulgated the decision of the Industrial Tribunal on that complaint. The tribunal sitting under the Chairmanship of Mr Roose. The unanimous decision of the tribunal was that the respondents, all three of them:

"... did not unlawfully discriminate against the applicant neither on racial grounds nor on grounds of her sex."

On 20th February 1997 Mrs Robson lodged a Notice of Appeal against that decision, and, broadly speaking, raised four separate grounds. In practice, as is so often the case with appeals, the appellant needs here to succeed on only one of the four grounds materially to succeed.

The first ground that she raised was headed "perversity"; I am not sure that that is the right description, but that was what the description was. The tribunal, ran the Notice of Appeal, found that there was no racial discrimination because the first and second respondents are related through marriage to persons who are from ethnic minorities; the claim is that a finding based on such an assertion is perverse.

That ground of appeal is, in truth, a distortion, almost a gross distortion, of what the tribunal had found on the point. I think it is here necessary to read the whole of the paragraph in the tribunal's findings which are headed "Alleged racist abuse":

"The Applicant complained that the First Respondent when giving her instructions on the computer had referred to the fact that she was Irish and thick. She alleged that the Second Respondent had made some similar observations. There was no corroborative evidence and this was not something that was raised by the Applicant when she made her written complaint. Both the First and Second Respondents were related by marriage to people from ethnic minorities and the Second Respondent had a black wife. In those circumstances one would not have expected them to be associated with such remarks. In the circumstances we preferred the evidence of the Respondents to that of the Applicant."

Miss Eady, appearing for all three respondents to the appeal, does not put the case as high as did the Notice of Appeal. She does say that the Industrial Tribunal was entitled to have in mind, as one of the factors which led them to the conclusion that the evidence of the respondents was preferred to that of the applicant, that both the first and second respondents were related to marriage to people from ethnic minorities and that the second respondent had a black wife, those being circumstances which had some relationship with whether or not the alleged racist abuse had taken place.

The circumstances which the Industrial Tribunal was referring to in the expression "in the circumstances we preferred the evidence of the Respondents to that of the Applicant", must, we think, be taken to refer to all three of the factors that had been mentioned in that paragraph, and therefore, must be taken to include the relationship by marriage and so on that we have just referred to.

We cannot doubt but that it was right of the Industrial Tribunal to have in mind that there was no corroborative evidence on the point, especially since evidence was given of the 'open plan' type of office which was where all three of the individuals concerned worked. We also think it relevant and proper to be taken into account by the Industrial Tribunal that Mrs Robson had not raised the matter when she made her written complaint. She had raised it in her IT1, but that written complaint there referred to was an earlier written complaint, a stage at which one might have expected that, if the alleged racist abuse had been directed to her, she would have touched upon it. So two of the three factors there referred to were plainly capable of properly being relied upon by the Industrial Tribunal. But one then must revert to the third factor, namely that for the reasons given:

"... one would not have expected them to be associated with such remarks."

The Industrial Tribunal plainly did rely upon that as one of the three factors. We cannot say that it was the least important factor simply because it was mentioned last, nor, indeed, does Miss Eady invite us to so conclude. We cannot say that the Industrial Tribunal regarded it as completely trivial or insubstantial. Indeed, had they taken that view, it is hard to see why they would have mentioned it at all. But, whatever weight was given to it, could it have been right?

It seems to us that no complaint could be made that the evidence was actually given. One must avoid here being hypersensitive; it is a very human reaction to an accusation of racial or other bias, to react by saying, however might be appropriate, for example, "some of my best friends are Jews" or "some of my best friends are Roman Catholics", or "what do you mean I am prejudiced, my mother is French", or "my sister is married to a Mason" or whatever it happens to be. But equally one must be aware that, although that is a human reaction as a defence to an accusation of some form or bias or prejudice, it is not necessarily logically probative of the absence of prejudice.

Here the Industrial Tribunal obviously did receive evidence that the first respondent was related by marriage to someone from an ethnic minority (but that ethnic minority is unidentified, though I think we can take it was not Irish), that the second respondent was equally related by marriage to someone from the ethnic minority (again the ethnic minority was unidentified, and I think we have to take it that it was not Irish either) and, thirdly, the second respondent was married to a black lady. Can such evidence be at all probative of the respondents or either of them not having said of Mrs Robson that she was a "thick Paddy", which was the nature of the remarks that were in issue? Can it, in any way, indicate that it was improbable that the respondents made any such remarks?

There is here, perhaps, some analogy with character evidence in criminal cases. Such evidence in generally taken to be irrelevant. But evidence of a defendant's general reputation of good character can be admissible as of some relevance where it is applicable to the particular nature of the charge. Even then it is generally though better that it should be taken to relate to the defendant's credibility, even if it has the indirect effect that it might tend to suggest that the defendant is unlikely to have committed the particular offence in question.

But here the evidence is not, as it seems to us, analogous to general reputation of good character. It could have been very relevant that in an office in which many Irish were engaged a particular respondent had over a long period shown no prejudice whatsoever and made no abusive remarks of any kind to the Irish colleagues. That would, so to speak, have been material general good character evidence. But can it be a factor of any weight as to credibility of the denial by the respondents of having made this particular anti-Irish racial abuse that either or both of them was related, by marriage only, to persons from some other ethnic minority? Can you say of Mr A that he is less prejudiced against the Irish because his sister has married one, for example? Can you say that Mr A is less prejudiced against the Irish because his uncle or aunt, lets say, has married someone who is Irish? Can it be said that persons generally with black wives are habitually less prejudiced that otherwise might be the norm against the Irish? Or can it be said that a white man with a black wife is less likely to be prejudiced than otherwise might be norm against the Irish? Questions such as these, it seems to us, only have to be asked for one to see that the evidence here should have been given no weight whatsoever in relation to the credibility of the respondents.

In general conversation and in general circumstances, it is, no doubt, harmless to suppose that a man or woman has demonstrated his freedom from some particular racial prejudice by indicating that he is seen to be free of racial prejudice in general. But even in that context one has to contemplate the possibility of attitudes such as "I get on fine with foreigners and Indians and Jews, but it is blacks that I cannot stand". And here, in any event, we are not dealing with general conversation, but with evidence relied upon at a serious tribunal.

Miss Eady points to other remarks in the course of the Industrial Tribunal's decision that seems to indicate that they have looked at the picture as a whole and have preferred the case of the respondents to that of the appellant. But it is hard to divorce from those general conclusions their preference in the passage we have cited for the evidence of the respondents to that of the applicant. Credibility was plainly an issue of great importance in this case and if the evidence of the respondents was preferred on the ground of a reason which should not have been taken into account, that, it seems to us, is likely have vitiated the general conclusions as well as the particular conclusion that we have cited, on whether or not the alleged racist abuse took place.

We cannot tell, of the three factors cited, whether they were given equal weight or whether any had greater weight than the others. We cannot tell whether this third factor which is under consideration might not have tipped the balance against Mrs Hodgson's credibility. We cannot be sure, therefore, that inappropriate weight was not given to something which should not have been given any weight at all.

In the circumstances, we see no real alternative to remitting the whole matter to a fresh hearing before a different tribunal.

There were other grounds raised in the Notice of Appeal. We have not heard argument on them. Mr Themis for the appellant would, in any event, have been, as it seems, in some professional difficulty in advancing some of the argument because in some instances he was likely to be both an advocate and a deponent that is because some of the other aspects of the appeal might have included questions about the propriety of the behaviour of the Chairman. As to that, we emphasise we say nothing whatsoever. We have not heard anyone on such subjects.

But it seems to us that it would be unfair to remit this matter to the same Industrial Tribunal and to ask them whether they would have been of the same view, even if they had left out this factor about relationship by marriage and so on, because some ten months have passed, and one could not fairly expect them to remember precisely how they weighed the evidence at the time. Moreover, it would unfair to expect Mrs Robson to have any confidence that she had been fairly treated if the matter went back to the same tribunal as the one which had earlier preferred the evidence of the respondents to that of her own.

It seems to us, therefore, with some reluctance, that the only course open to us is to remit the matter to a fresh tribunal.

Miss Eady, quite rightly, argued stronger positions than that with which we were concerned, for example, where a party was found on the evidence to be a member an extreme political party that had strong view, let us say, about sending black people back to the West Indies, or other extreme forms of racist sentiment. It seems to us that what we are here ruling upon is not that generally, and in all the circumstances no such evidence can be ever received. We do draw analogies with the admissibility of character evidence in some cases in the criminal courts, but limiting ourselves to the particular instance which is put before us, we feel that no weight should have been given to that third factor, that weight does seem to have been given to that third factor; that it lead to the conclusion that the evidence of the respondents was preferred to that of the applicant, that that was a central issue in the case and that as it was arrived at by a route which we see to be improper, there is no alternative but to remit the matter afresh to a new tribunal.

Leave to the respondents to the appeal here to appeal to the Court of Appeal.