United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S MUNASINGHE (of Counsel) Instructed By: Mr R Lawanson Principal Litigation Officer Commission For Racial Equality Maybrook House (5th Floor) 40 Blackfriars Street Manchester M3 2EG
For the Respondents	MR D P GOULDING (of Counsel) Instructed By: Mr M Edwards Messrs Mace & Jones Solicitors Drury House 19 Water Street Liverpool L2 0RP


 


MR JUSTICE CHARLES: The parties to this appeal are a Mr Willis and the Merseyside Police Authority & Others. Mr Willis appeals against a decision of the Employment Tribunal, the Extended Reasons for which were sent to the parties on 16 July 1998. In their decision the Employment Tribunal found that the Appellant's complaint of race discrimination fails.

1. When this matter came before this Tribunal pursuant to the preliminary hearing procedure, His Honour Judge Peter Clark gave a short judgment which indicates that two of the Tribunal on that occasion thought that the appeal did not raise any reasonably arguable points, but that as one of the three members was of the view that it did raise reasonably arguable points pursuant to the then existing practice of this Tribunal on preliminary hearings, the appeal should proceed.
2. We have now had the benefit of (i) a skeleton argument from the Respondent authority, (ii) we think a further skeleton argument from the Appellant over and above that which was before the Tribunal on the preliminary hearing, and (iii) oral submissions made by Counsel on behalf of the Appellant.
3. We are unanimously of the conclusion that the majority on the preliminary hearing were correct and this appeal does not raise points that are reasonably arguable and that it fails.
4. We would also like to take this opportunity to compliment the Employment Tribunal on the content and clarity of their Extended Reasons, which in our judgment, demonstrate clearly firstly, that they took the correct approach in law and secondly, how they reached their conclusions. As to the last point, it is of particular importance on this appeal that they explain in paragraphs 7 and 8 why they did not make the inference which the Appellant urged them to make.
5. In correctly setting out the law and taking the correct approach it is apparent that the Employment Tribunal were assisted by Counsel, who appeared below, in setting out the tests. Before us Counsel for the Appellant has added to his skeleton argument orally but that skeleton argument identifies the main points he advances on this appeal. The first point is that he made submissions before the Employment Tribunal based on section 65(2)(b) and section 47(10) that, having regard to those statutory provisions the Employment Tribunal should infer discrimination. He says correctly that the Employment Tribunal do not, in their Extended Reasons, refer expressly to either of those two sections. He therefore says that his client feels aggrieved because, in effect, the Employment Tribunal have failed to explain why he lost the case. In our judgment that submission is simply nonsense.
6. The fact that the Employment Tribunal do not refer to the sections can, in certain circumstances, lead to a conclusion that they have not taken them into account. Here, when the Employment Tribunal (i) make findings that seriously criticise the approach taken by the employers and thus recognise that there was an inconsistent application of a Code of Practice and that the assertions the employers had made, both in their appearance and in the answers to questionnaires, did not accord with the facts that they found, and (ii) then go on, in the light of those findings, to consider the question whether or not they should infer discrimination, it is in our judgment quite apparent that they have taken those matters (and thus ss. 65(2)(b) and 47(10)) into account. One only has to read the first sentence at paragraph 8 of the Extended Reasons to see that. It is in the following terms:

"Thus, we substantially accepted the Applicant's strictures on the failure to short-list him. But should we infer from the defects in the respondents' decision that he was unfairly treated probably because he was Irish? ..."

That identifies the issue clearly and succinctly. We therefore reject the first point made on behalf of the Appellant.

7. The next point that was made was that in their reasoning the Employment Tribunal did not explain why it was the Applicant (and I think one other) who was not short-listed and five others were. We have had some difficulty in understanding this submission but, as we understand it, it is to the following effect, namely:

If the approach of the employers was unfair and "a botched up job" as essentially found by the Tribunal, why did it not affect the five who were short-listed?

It seems to us that that is part of the analysis in the Extended Reasons showing why there was unequal treatment. When going on to infer why there was such unequal treatment we do not understand the force of the submission. Further, why the unfairness of the system that was adopted affected the Applicant is clearly explained in the Extended Reasons (in particular in paragraph 7).

8. Finally it was submitted that it was unfair to this Applicant and would be unfair to applicants generally if Employment Tribunals were entitled to make a finding that did not accord with the reasons advanced by the employer, and on the basis of that finding reject the submissions made by the Applicant that an inference of discrimination should be drawn. Again, in our view, that assertion is nonsense. It was said that the finding of the Employment Tribunal did not accord with the representations made by the Respondents. So far, so good. That does not mean that they did not have evidence on which to make their findings.
9. Further, it is an essential ingredient of the approach in King confirmed by the House of Lords in Zafar that the Employment Tribunal must make findings of primary fact as to what happened in any relevant selection process. Having done that they must go on and ask themselves the question from those findings, "should we find / infer discrimination?". That is what this Tribunal obviously did. For the Appellant to say that he was taken by surprise, or that the matter was unfair, is to us a surprising submission.
10. It must have been the Appellant's case before the Tribunal that the reasons being advanced by the employer were not satisfactory or adequate reasons. If the Appellant had properly prepared his case he would have gone to the Employment Tribunal armed with his arguments as to why, having succeeded on that aspect of his case, discrimination should be inferred.
11. It seems to us that it was inevitably part of the Appellant's case that the reasons offered by the Respondent were not good reasons, or did not provide an adequate explanation, and thus that they had carried out an incompetent and unfair selection process. Having got to that stage that it was then the Appellant's case that the Tribunal should infer discrimination. The Tribunal did not do so and as we have said, explained quite clearly why they have not done so and, in our judgment, for the reasons we have given this appeal fails and is dismissed.