United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JONATHAN CLAY (of Counsel) Instructed by: Ms A Ogundimu 2 Livingstone Lodge Carlton Gate Harrow Road Maida Vale London W9 3RL


 


JUDGE HICKS QC:

1. Mr Griffith, the appellant, is of Afro-Caribbean origin and was employed by the respondent, the Post Office, as a postman from 7th December 1987. He never did obtain promotion substantively from that position, but it is an important part of the background to this appeal that having in early 1992 passed an aptitude test he was placed on the Acting Manager List which, as we understand it, made him eligible to "act up" in managerial positions, and indeed he did so on three occasions for fairly substantial periods – from February to August 1992, from April 1993 to December 1994 and from June 1995 until March 1998. While acting up his responsibilities were managerial and his pay was also higher, so that when he reverted to his substantive level as postman he was less well off.
2. Early in 1997 he made an application for a substantive post as manager and was shortlisted, but failed the assessment twice. It seems that on the occasion of the second assessment he was warned that that would not just be treated as an assessment for the purposes of his application for the substantive post, but also that failure might or would result in his removal from the acting list. He did fail it. At a meeting on 6th March 1998 with his ultimate line manager, Mr Thorne, he was given the options of remaining as a postman, albeit at a higher grade, on the project on which he had been engaged as an acting manager, or of return to Willesden as a postman. They clearly both represented the loss of his status on the acting manager list. In the event the appellant returned on 6th April 1998 to Willesden as a postman, but three weeks later on 27th April 1998 resigned.
3. The appellant's resignation founded an application by him to the Employment Tribunal complaining of unfair dismissal on the basis that that resignation was a constructive dismissal. Both the circumstances which immediately led up to that situation and other wider circumstances were relied upon by him in support of a further application for relief on the basis of discrimination against him on the grounds of race.
4. The Employment Tribunal dismissed both application, but insofar as they dismissed the application of racial discrimination they did so after having reached a finding that there was discrimination against the appellant, or to use the precise terms of the statute he was treated "less favourably" than the employer treated or would have treated other persons. The tribunal's dismissal of the application therefore rested on a finding that despite that discrimination, it was not discrimination on racial grounds.
5. The Notice of Appeal raises seven grounds of appeal. We can dispose of some of them very briefly. Both grounds 6 and 7 are on their face allegations of errors of fact on the part of the tribunal. It seems from what Mr Clay tells us, although that had not been very clear to us on the skeleton arguments, that those grounds would go to the unfair dismissal application as well as to the racial discrimination application, but since they do allege only errors of fact, they are clearly not matters that should go to a full hearing in this tribunal, whose jurisdiction is concerned only with errors of law. Therefore that disposes of the unfair dismissal case, because there is no doubt whatsoever that all the other grounds do relate solely to the racial discrimination claim.
6. Ground 5 we can dispose of equally briefly, because Mr Clay did not seek to maintain that that raised an arguable ground of appeal, turning as it does purely on the question whether the tribunal correctly understood and took account of a particular answer which the appellant gave in the course of his evidence.
7. That leaves, therefore, grounds 1, 2, 3 and 4, which we shall deal with in that order.
8. Ground 1 and 2 we can take together; although they are set out at a little length and in different form they both, as Mr Clay accepted, turned on the decision of the Employment Tribunal not to embark upon a consideration of a claim for what is commonly called "indirect discrimination". The way in which the tribunal deal with that in their reasons is as follows:

"1 This was the third occasion on which the parties had appeared before the Tribunal. On 28 September last at a second interlocutory hearing the issues were agreed between the parties in the following terms. In terms of race discrimination these were whether the Respondent unlawfully discriminated against the Applicant on the grounds of his race by failing to support him and provide adequate training etc in his role as Acting Manager, by demoting him to the grade of Postman and by failing to pay bonus in April 1998 contrary to sections 1(1)(a) and 4(2)(b) and/or (c) of the Race Relations Act 1976. … At the conclusion of this hearing the final submission was from Mr Clay on behalf of the Applicant. In that submission and for the first time he raised issues of indirect discrimination, which in our view come too late in the day. These had not been raised before and the Respondent has had no opportunity to prepare its case on these late issues. Every attempt had been made to ascertain well beforehand what the issues were to be at this hearing and these issues have not at any time previously been raised. Accordingly they form no part of this decision."

The relevance of the reference to the sections of the Act is of course that s. 1(1)(a) is part of the definition of discrimination and provides:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; …"

That is commonly called "direct discrimination", but s.1(1)(b) deals with situations where:

"(b) He applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it."

That is commonly called "indirect discrimination".

9. We do not consider that grounds 1 or 2 raise any matter which justifies going to a full hearing, or any arguable ground of appeal. It was the case, as recited by the tribunal in their reasons, that there had been interlocutory hearings. The relevant hearing was the one which occurred on 28th September 1998. It was attend by Counsel for both parties. The result was recorded in a letter of 30th September 1998 sent by the Employment Tribunal to the appellant's solicitor. On the present point it reads as follows:

"I write to record what was agreed and directed by the Chairman at the Interlocutory Hearing. …

The issues are:

1. Race discrimination, whether the Respondent the unlawfully discriminated against the Applicant on the grounds of his race by failing to support him and to provide adequate training etc. in his role as Acting Manager by demoting him to the grade of Postman and by failing to pay bonus in April 1998 contrary to sections 1(1)(a) and 4(2)(b) and/or (c) of the Race Relations Act 1976. …"

It is quite clear that s.1(1)(b) is not included. It is quite clear that after that interlocutory hearing at which both parties, including the appellant, were represented by Counsel and in which that decision is communicated to the appellant's solicitor, everybody well understood that indirect discrimination under s.1(1)(b) was not included in the issues to be dealt with. We are far from assuming that it would have then have been impossible for the situation to change, but at the hearing, at the close of the appellant's case, as Mr Clay tells us, there was some discussion or some application at which the tribunal sought further clarification of the issues. Mr Clay says that he drew attention to a case called Cast v Croydon College [1998] IRLR 318 (as it happens an indirect discrimination cases) on the question whether the acts complained of were raised in time, but that of course is not the same thing as saying that he wished or applied at that stage to reverse the Chairman's ruling at the interlocutory hearing in September 1998 about indirect discrimination, and Mr Clay accepted before us that at that stage at the latest he should have applied for leave to argue s. 1(1)(b) if that was the wish and intention of the appellant and those representing him. Indirect discrimination was raised and argued in Mr Clay's closing speech and was objected to by Counsel for the respondent on the ground that it was not one of the issues before the tribunal. In all those circumstances, we see no error of law on the part of the Employment Tribunal in declining to entertain it.

10. Ground 3 arises in a sense out of the same situation but is a distinct point. I shall not read it because I am not sure that the actual text, which is lengthy, makes clear the point which, as emerged in argument, Mr Clay really wishes to make. There was evidence before the tribunal of a statistical nature from the respondent's witnesses, in particular a Mr Dulieu, which, as Mr Clay puts it, could go to indirect discrimination as showing that the tests and assessments which the respondent was applying were such that the proportion of person of the appellant's racial group were less likely to be able to comply, simply in the sense that fewer of them did succeed proportionally than white persons. But it is also relevant, Mr Clay says, to the case of direct discrimination, because when the tribunal came to consider what were the grounds on which the employer treated the appellant less favourably, as they found they did, they ought to have taken into account that evidence. Mr Clay submits that there is nothing to show on the face of their reasons that they did and therefore it must be assumed that they did not do so and therefore have erred in law. That, as we understand it, is the point.
11. The situation was that, for the reasons already dealt with in discussing grounds 1 and 2, the tribunal at the hearing, and the respondent, plainly approached the case on the basis of direct discrimination alone. This statistical evidence, it seems to us, could not possibly have been understood by the tribunal other than as going to the direct discrimination, because that was the only point they were prepared to entertain or consider. It therefore seems to us quite wrong on the familiar principles on which this tribunal approaches the analysis of reasons given by the Employment Tribunal to assume without any positive indication in that direction, that they had totally forgotten and ignored that evidence when they came to reach their decision. Moreover, although it is only a passing reference, there is some indication that they had it mind, because in paragraph 18 of their reasons, in dealing with the question whether the less favourable treatment was on racial grounds, they say:

"18. … Much reliance had been placed upon the assessments …"

That is not only capable of referring but, we believe, should be understood as referring not only to the particular assessments of the appellant on which he based his direct case of discrimination, but also on the evidence as to the nature and results of assessments generally which the tribunal had heard, and which had been canvassed in evidence in chief and cross-examination. We do not, therefore, consider that ground 3 is arguable.

12. That leaves ground 4, which reads as follows:

"In paragraphs 7 and 8 the Tribunal find as a fact that the Applicant's appraisal did not meet its own policy and that the appointment of Mr Rennick and Mr Aldridge were contrary to the Respondent's advertising and equal opportunities policies. The majority decision of the Tribunal state this again in paragraph 18, but fail to give a reason or inference for the less favourable treatment."

This ground of appeal therefore amounts to two propositions, one of law and one as to the actual terms of the tribunal's reasons. Taking the latter first, the assertion is that the tribunal give no reason or inference for less favourable treatment, but in our view that is not so. Having found the less favourable treatment the tribunal go on to say this:

"18. … Even so having reviewed the evidence in relation to these matters we cannot see that the Applicant's suffered any less favourable treatment on racial grounds."

The word "any" must, we think, clearly be understood as meaning "that" less favourable treatment, because they have just found some. The tribunal continues:

"Much reliance has been placed upon the assessments but these were in the main assessments upon employees' inter-active and role playing skills. These are skills, which should be possessed by any manager who has any clout in the organisation. Having heard the Applicant give evidence and having read the observations upon his performance at these assessments we can see that he has some way to go in acquiring them. However, it was made quite clear to him that in six months time he would be entitled to come back and have another try. For the reason set out above the application is dismissed."

We think that on any fair reading of that passage, that the tribunal were finding that the less favourable treatment was not on racial grounds but also were positively finding that it was on the ground of the appellant's deficiency in inter-active and role playing skills - skills, which as they find, "should be possessed by any manager who has any clout in the organisation". We find that there is no arguable ground of appeal that the decision did not give a reason.

13. It is not, therefore, necessary to go on to the second point, a point of law, as to whether it is necessary for the tribunal to do so. On the face of it, we should have thought plainly not. The tribunal must of course take into account, as they say they did, the quite emphatic references in the authorities to the likelihood that there would be no direct evidence of racial grounds and the need, therefore, to consider what inferences should be drawn. At the end of the day, it remains the case that the onus on this issue lies on the appellant and therefore we should have thought a simple finding that a racial ground has not been made out is in law sufficient. However, we need not base our decision on that view, because as we have said a reason is in any event given.
14. As originally worded, therefore, we consider that ground 4 is not arguable. However, Mr Clay applied for leave to amend it so as to add some words. They read, with a very minor clerical emendation which does not effect the substance, as follows:

"In so far as the Tribunal gave reasons for that less favourable treatment, it erred in law in reaching its own judgment as to the Applicant's managerial potential."

We have decided to give leave for that amendment. It seems to us that the words in the paragraph 18, "having heard the Applicant give evidence … we can see that he has some way to go in acquiring them," makes it clear that one of the reasons, although not the only reason, for the tribunal's conclusion was its own assessment of the appellant, not just as to the credibility of his testimony in the witness box, but also as to his personality and his aptitude for managerial positions. That point - or perhaps it is really two points, (1) the question whether the tribunal's assessment of that kind is properly to be taken into account at all; and (2) whether, even if it is, the tribunal does not betray that it is substituting its own judgment by the words "we can see he has some way to go in acquiring them" - both, it seems to us, raise arguable grounds of appeal. We do not of course reach any conclusion as to what the result of such an appeal should be, but they are points which we consider the appellant should be entitled to raise.

15. The result is that we direct that the appeal go forward to a full hearing on ground 4 alone, amended by the deletion of the original second sentence. The first sentence remains as background fact. The second sentence goes because for the reasons we have given we do not consider it arguable. In place of the second sentence there are the words which I have dictated, which we allow to be added by way of amendment in response to Mr Clay's application to that effect.
16. We therefore direct that an amended Notice of Appeal be filed and served within seven days in accordance with the reasoned judgment of this tribunal.