United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BURNS (OF COUNSEL) (Instructed by) Messrs Ray & Co 150 Whitecross Street London EC1Y 8UM
For the Respondent	MR D FISHER (OF COUNSEL) (Instructed by) Messrs Fairbairn Morris St Martin's House Priory Court Pilgrim Street London EC4V 6DR


 


MR JUSTICE MORISON (PRESIDENT): This is an Appeal against a unanimous decision of an Employment Tribunal held at Stratford over a period of 3 days between 26^th November and 18^th February which rejected Mr Dass's complaint that he had been discriminated against and victimised by his former Employers, London Guildhall University on racial grounds.

1. The brief facts relating to this case, which are relevant to this issues in this Appeal, can be shortly stated. Mr Dass hails from (to use the words of the Tribunal) Bangladesh. He was teaching at colleges of Further Education for some time until 1993 when he was approached about a post at London Guildhall University with a view to becoming a part-time visiting lecturer. His first contract was from 25^th October 1993 to December 1993 and he had a series of contracts which preserved his continuity of employment from 25^th October 1993 until 30^th June 1995. The Tribunal noted "In short, Mr Dass, unless told otherwise would expect to have his contract renewed in some form or another".
2. In 1994 Mr Dass had twice taken the Tower Hamlets College to the Industrial Tribunal because he felt he had been discriminated against on the grounds of race and he believed that Mr Ludi, who was his manager at London Guildhall University would know about that. First of all, because Mr Dass said that he had told him. Secondly, because Mr Ludi, as was Mr Dass, was a member of the Tower Hamlets Race Equality Council and Chairman of its Education Committee and Mr Ludi, on 28^th June 1995 which was the Applicant's last day at work, rearranged the Applicant's classes to allow Mr Dass the opportunity to attend an Employment Tribunal. The circumstances giving rise to the non-renewal of his contract by the London Guildhall University forms the subject matter of part of his complaint of discrimination on grounds of race. Mr Ludi came also from Bangladesh, although he has a different language or dialect from Mr Dass.
3. There came available a new post in February 1996 and Mr Dass applied for that post and was on a short list of 2, the only other candidate being white and his non-appointment to that post formed another part of his complaint. The Tribunal found Mr Ludi's evidence unbelievable in certain respects. What they said about him was this:

"Mr Ludi did not impress us at all. It was very difficult to see a consistent pattern through parts of his evidence. There is no doubt that he told us a number of untruths. He rarely answered a question in a straightforward manner and was prone to begin his answers before questions had been fully posed."

4. They were more impressed by two of the other University witnesses and particularly impressed by a third, Mr Asiz. The Tribunal made their findings of fact and in para 21 of their decision they said this:

"Mr Ludi, we believe, said nothing at all to raise any concerns on the part of the Applicant about his teaching ability and in our view, more likely than not, made reassuring noises to Mr Dass. Late in the day, around September or October, when funding was secured, a stricter regime was required. Results and feedback from students suggested that things had to alter, particularly on the English side. Mr Ludi would have known this and that Mr Dass was unlikely to be in the frame for a lectureship in the Autumn. He should have told Mr Dass this but didn't do so. For what he described as cultural reasons, he failed to tell Mr Dass of any shortcomings on his part or of any alleged comments by students. Neither did he tell him that Mr Ford was a more favoured runner in the race for a new job. (This was the white candidate who was ultimately successful). This was a completed abdication of Mr Ludi's responsibilities as a Line Manager and it did no favours for the students, Mr Dass or for the University generally. We also believe that Mr Ludi well knew that Mr Dass had in the past complained about and was then currently taking Tower Hamlets to the Employment Tribunal. It is inconceivable that he knew nothing more than he would have us believe he did. Further, we believe that in order to keep face with Mr Dass, he told him that management wanted white, native speakers only, if only to deflect any possible criticism from himself and to prevent any accusations of disloyalty against him. Mr Kirkwood, we believe, assumed that Mr Ludi had explained matters to the Applicant and was genuinely surprised when Mr Dass spoke to him in the first week of October."

5. They continued later in their decision in this way. "As for the claim of victimisation, that is the events in January/February 1996, our view is as follows." (I then leave out a passage and continue with the Tribunal's decision):

"There were two applicants, Mr Dass and Mr Ford. We heard and saw the evidence relating to the interview and the assessments made. There is no doubt that Mr Dass on paper, had the better of Mr Ford, but we heard that Mr Ford put up a much better performance at the interview itself. That tipped the balance in the latter's favour. Mr Ford, a white male person, had been appointed to the job which Mr Dass had been expecting to get and had no reason to think he would not get, and Mr Dass had never in the past, ever been criticised in relation to the adequacy of his performance. Mr Ludi, we regret to say, exposed his pre-judgment concerning Mr Dass. We are quite sure that he carried his thoughts about exam results and the feedback from students to the meeting. That is, he had already taken the view that Mr Ford was likely to be more suitable. Despite that, we are equally sure that the majority chose Mr Ford for the right reasons as they saw it. Mr Asiz, as we have said before, brought a fresh mind to the proceedings and we repeat, having heard his evidence, that he was eminently suited to the task and would have had no truck whatsoever with any form of discrimination, whatever its nature. We have looked at the markings and heard the views and explanations of Mr Collier and Mr Asiz in relation to the interview. Having said what we have about Mr Ludi's involvement at the interview, did he, as (Counsel) suggested perhaps influence the other two, and if so, was it in a discriminatory way. Mr Ludi did, we believe, discriminate against Mr Dass, but not, we are sure, on the grounds of race, colour or nationality. Mr Ludi was someone who bottled out of his responsibilities insofar as Mr Dass was concerned and would, we believe, by temperament if nothing else, gone along with the views of Mr Asiz and Mr Collier, whatever those views may have been in relation to choosing a lecturer on 30^th January 1996. As we have found, both Mr Collier and Mr Asiz dealt with the matter of choice even-handedly, honestly and fairly and neither was influenced by the fact that Mr Dass brought a claim against the University on 2^nd January. In fact, we feel sure that Mr Asiz was not even aware of that fact. For that matter, neither do we believe it was factor which adversely influenced Mr Ludi against Mr Dass. He had long before decided that Mr Ford was to be the preferred choice. We were not over impressed with his explanations as to the reasons for that but we cannot see that he was influenced against Mr Dass on the grounds of race, colour or nationality."

6. It was those findings which led them to reject the Applicant's complaint.
7. We have been assisted on this Appeal by Counsel on both sides: for the Appellant, Mr Burns, and for the Respondent, Mr Fisher. We would first of all like to pay tribute to the way in which they have conducted this Appeal. It has been shortly and concisely argued on both sides and we believe that we have been given the benefit of advocacy at a high level.
8. On our suggestion, we concentrated on the first ground of Appeal which essentially relates to the finding by the Tribunal which used the expression "for cultural reasons Mr Ludi failed to tell Mr Dass of any shortcomings on his part". As was submitted by Mr Burns, that phrase is very close to defining a person's ethnic origin. It seems to us that one can have endless arguments about what is meant by the word "cultural" or the phrase "cultural reasons". The cultural tradition of a group of persons is a defining characteristic of someone's ethnic origin and it is clear that having a long shared history and having a separate cultural tradition are the marks and essential characteristics of an ethnic group. "Cultural reasons" are capable of including matters which are not covered by the Race Relations Act as it seems to us, although they are very close to it.
9. Mr Burns invites us to the view that, effectively, the Tribunal have found that there was discrimination on the grounds of race, because they found that Mr Ludi discriminated against Mr Dass and apparently did so for "cultural reasons", and yet failed to make the necessary conclusion, namely to uphold this complaint. Mr Fisher, for his part, says that because "cultural reasons" could mean matters covered by the legislation or might include matters which were not covered by the legislation we should not interfere with this decision because if it was capable of meeting one or the other, we are to assume that the Employment Tribunal have used it in the second and not the first sense. This is not a case where you should be saying "My goodness, this decision must be wrong". Mr Fisher suggested to us that the cultural reasons might relate not to Mr Dass but to Mr Ludi himself. In other words, it was Mr Ludi's "cultural background" which made him behave in a way which the Tribunal found quite unacceptable.
10. Mr Burns pointed out that if by "cultural reasons" they meant, effectively, race in the sense as defined in the Act then they should have made a finding that there had been discrimination on racial grounds even if the racial grounds applied to Mr Ludi rather than Mr Dass. There is a distinction to be drawn between the wording of Section 1 of the Sex Discrimination Act which relates to the gender of the victim and the Race Discrimination legislation which is more generally expressed to include the possibility that "X" may discriminate against "Y" for reasons relating, for example, to "Z's" colour.
11. It seems to us at the end of the day that this a decision about which we have great discomfort. I suppose that is merely another way of saying, as we do, "My goodness, this decision must be wrong". They found that Mr Ludi was discriminating against Mr Dass. They presumably are finding that he did so for "cultural reasons" and yet curiously, they have accepted Mr Ludi's explanation that the reason why he was telling Mr Dass that the University wanted a white person who was eventually appointed, was because Mr Ludi was lying about it, presumably for "cultural reasons". Our view is that this decision cannot stand as it is. We take the view that Mr Dass is entitled to have a proper understanding of why he has lost this case. On the basis of findings made by the Employment Tribunal he has, in our view, a justifiable ground for believing that there has been a lack of explanation by the Tribunal as to what they meant by "cultural reasons". Whose "cultural reasons" were they were referring to? If they were referring to Mr Ludi's "cultural reasons" or culture and were saying it cannot be race discrimination because he was not the victim, then there would be an error of law. It is not at all clear to us that the "cultural reasons" that they were finding were not those matters covered by the Act, but if they are going to use a phrase such as "cultural reasons" it seems to us that it is incumbent on them to explain why it was that they were not making a finding of race discrimination. The words "cultural reasons" are very close to if not exactly equivalent to the definition of race in the Race legislation.
12. So there is a lack of explanation for this decision, on one reading of it, which appears to lead to a natural conclusion that there was unlawful discrimination and yet, oddly as it seems to us, the Tribunal comes to the conclusion that there was no discrimination on the grounds of race. If we had been convinced by Mr Burns that the only conclusion that could be drawn from the Tribunal's decision was that there was race discrimination, we of course, would have allowed the Appeal and substituted our own finding. As it is, we are left with a feeling of great unease about the way in which this Tribunal decision has been written and whether the Tribunal has directed itself properly in law about the drawing of inferences. It seems to us that they should not have accepted an explanation without understanding what that explanation was because in order to understand the way that Mr Dass had been treated, they needed to know why and what the explanation was that was being advanced. The explanation advanced was "cultural reasons". It seems to us that the Tribunal were bound to say more than that, because until they had done so, they could not, legitimately, have approached the question of whether or draw an inference or not.
13. So it seems to us, that had it been inevitable that the decision must have been the other way, we would have allowed the Appeal, as I have said, and substituted our own finding, but we are not able quite to do that. As it seems to us, since "cultural reasons" could mean reasons other than race as defined in the legislation, it must be possible for the Employers to defend their case again in front of another Employment Tribunal. It is regrettable that there has to be a re-hearing but where there has been, as we think, an error of law in the decision, and in the approach that the Employment Tribunal has taken in the way they have set about their decision, then we have to allow the Appeal and unless we can substitute our own decision, there has to be a further hearing, even though the passage of time is going to make that more difficult.
14. That being so, we Order that the matter be remitted to a differently constituted Tribunal, allowing the Appeal to enable that to be done.