United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NR S NEAMAN (of Counsel) Instructed By: Messrs Olswang Solicitors 90 Long Acre London WC2E 9TT
For the Respondent	MR B WILTSHIRE (of Counsel) Instructed By: Ms P Grant Principal Legal Officer Commission for Racial Equality Elliott House 10/12 Allington Street London SW1E 5EH


 


MR JUSTICE MORISON: This is an appeal against the unanimous decision of an Employment Tribunal. Their decision was sent to the parties on 4 March 1998 following two days of evidence and one day of consideration by the Tribunal. The Tribunal were dealing with two applications for employment which the Applicant, Mr Cumandala, had made seeking employment with the Respondents, his prospective employers, Bloomberg Financial Markets.

1. The two jobs are conveniently described by the Employment Tribunal as the Data Collection position and the Statistics position. In relation to the Data Collection position, the Employment Tribunal upheld Mr Cumandala's complaint that he had been unlawfully discriminated against on the grounds of his sex, namely his marital status. But in relation to the Statistics position, the Employment Tribunal concluded that Mr Cumandala had not been discriminated against on the grounds of his race.
2. There is an appeal by the employers against the finding against them in relation to the Data Collection position and an appeal by Mr Cumandala against the Tribunal's rejection of his complaint in relation to the Statistics position. It will therefore be necessary to deal with each of the job applications separately and the Tribunal's reasoning separately.
3. The first matter is the Data Collection position. The employers decided to recruit for positions in its pricing group and there was a vacancy for a Data Collector to be based in Madrid. Mr Cumandala had lodged his curriculum vitae with an employment agency, LKRC, and as a result of LKRC becoming aware of this post, his name was put forward to the employers. He was interviewed on 17 February in respect of the Madrid position, that is, the Data Collection position. He had, or may have, blotted his copy book with his prospective employers by seeking to contact them directly prior to the interview process, however, the Tribunal did not conclude that that error of judgment on the Applicant's part played any part in the ultimate decision which was made.
4. Mr Cumandala is a married person of Angolan nationality and is black. He lives with his wife in London, or was doing so at the time of the interview. She herself had a career, as we understand it, in London. The question arose as to how Mr Cumandala was going to manage a job based in Madrid and he made it plain, apparently, during the course of interview that he would be commuting back at the weekends. He did not see any difficulty with doing that from his own perspective but ultimately, his employers doubted whether he would be able to give the necessary commitment to the position, as a result of him carrying on a commuting activity. What they were looking for, as I have indicated, was somebody whose base was in Madrid rather than whose base was in London and commuting on a weekly basis to Madrid.
5. It was contemplated that if he had been given the position, he would have spent four months familiarising himself with procedures at Head Office in London and then gone to Madrid for a minimum period of 18 months. The Tribunal's conclusion on this issue was that the marital status was an important factor in the decision not to appoint him and he was treated less favourably on that ground than the employers would have treated someone who was not married. In arriving at their conclusion, they set out in paragraphs 41 to 43 what we understand to be their reasons.
6. In relation to this appeal, Mr Neaman on behalf of Bloomberg makes a number of compelling arguments. He says in the first place that this was an application for employment which was not wholly or mainly within the United Kingdom, since for 18 months minimum period he was to be based in Madrid. That was to be compared to the four months which he was spending in London prior to going to Madrid, and therefore by virtue of section 8 and section 10 of the 1975 and 1976 Acts, this was an application for an appointment which fell out with the provisions of the legislation. He pointed out that as the Applicant was an Angolan National, he did not fall within the protection afforded by Article 48 which was the subject matter of a decision of the Employment Appeal Tribunal in the case of Bossa where it was held that in connection with European Nationals the provisions in sections 8 and 10 were contrary to European law and should be ignored.
7. He then submitted that a proper analysis of the reason why Mr Cumandala had been rejected was not because of his marital status, but because he was a commuter and he made the point with cogency and force, it seems to us, that a person might have been a commuter for a whole variety of reasons including: that the person had a partner to whom he was not married, whether male or female, who was in this country; or was an avid follower of a football team and/or a cricket team, and that was the reason why he wanted to return at the weekend; or simply was interested in seeing his dog at the weekend. The same decision would have been made by the company in relation to a person whose requirements led him to commute, whatever those requirements might have been, and therefore he submitted to us that there was no generalised assumption about the Applicant's marital status which was a necessary step in the reasoning process.
8. On behalf of the Applicant/employee, Mr Wiltshire said that it was possible from looking at paragraphs 41 and 42 to see that there was evidence on which the Employment Tribunal was entitled to arrive at its conclusion. He referred to the fact that one of the decision makers had been cross-examined about her own personal position and her own view as to whether she would wish to be working in a different location from her husband. We were also referred to various cases which we do not consider take the matter any further forward. The evil of discrimination stems from generalised assumptions made about people and not treating them as individuals worthy of individual respect.
9. It seems to us very clear that Mr Neaman's submission is correct, that no generalised assumption has been made about the Applicant's marital status and what married will, or might do. In other words, his marital status was not a necessary step in the reasoning process that led the employers to determine that Mr Cumandala lacked or might have lacked the necessary commitment to the job in Madrid. This was, we agree with Mr Neaman, a reason which related to his commuting. There was no assumption, as it seems to us, that a husband and wife should wish to be together and therefore somebody should not be appointed to work separately from his spouse. Nor was there any generalised assumption that because of their marital status he lacked a commitment of itself to the company.
10. In these circumstances we have to say that we are satisfied that the Tribunal arrived at a conclusion which was simply unsubstantiated by the material before them.
11. We turn therefore to consider the employee's appeal against the Tribunal's rejection of his complaint of unlawful discrimination on the grounds of race in relation to his rejection by the company of the Statistics position. In relation to that position, the Tribunal's findings may be summarised in this way. After he was rejected for the Madrid position, the decision makers, Ms Henderson and Ms Andrews, put him forward for consideration for the London based position of the Statistics position. Because they had only just recently interviewed him for the Madrid position, it appears to have been the evidence before the Employment Tribunal that he was simply to meet the members of the team who were working in London and with whom he would be working were he to be appointed. But as we understand the evidence, the decision to be made was to be taken by Ms Henderson and Ms Andrews together. They concluded as follows:

"45. We accept the argument of the Respondents that they knew of Mr Cumandala's racial identity before they interviewed him, and it cannot therefore have been a factor when they interviewed him. However, they were then faced with a choice between Mr Cumandala and Mr Gunn. Mr Gunn was much younger and would clearly fit in to the existing team in racial terms. Hence the reference to team work in the answer to the questionnaire. We cannot readily accept that his fluency in German as the real explanation for his choice. It was one point of difference which was not of sufficient significance to figure in the written criteria for the position. No one inquired into the proficiency which Mr Cumandala might have. The benefit of having a German speaker depended upon the spread of languages amongst other members of the group, and clearly that was something which might well change at any time. The other points relied upon as suggestions that this was a decision made on merit, are limited to the suggested additional expertise of Mr Gunn in statistics, and it does not bear examination of the facts. It is spurious. Given that there was a difference in race between Mr Cumandala on the one hand and Mr Gunn on the other hand, combined with that difference being extended to other members of the team which was effectively making the decision who would join them, and given that Mr Cumandala was less favourably treated by not being appointed, we are entitled to a cogent and acceptable explanation from the Respondents. The explanation given is unsatisfactory. However, the decision to uphold the complaint of discrimination can only be made if we are satisfied on the balance of probabilities that it should be the outcome, the burden of proof being on the Applicant. That decision must be made on the basis that we may arrive at it, not that we should or must do so: Zafar v Glasgow City Council [1998] IRLR 36. We find the balance of factors and arguments very difficult to resolve but in the end, we are not satisfied that the complaint is well founded."

12. The argument that has been advanced by Mr Neaman on behalf of the employers to support the Tribunal's decision is as follows. The sentence which reads "Mr Gunn was much younger and would clearly fit in to the existing team in racial terms" was not a finding related to the employers state of mind, but was rather a simple observation of the Tribunal of its own thoughts on the matter. He accepted that the word "hence" which immediately followed that sentence made that proposition less tenable, but he said that the alternative view was that the Tribunal having concluded that the white applicant would clearly fit into the existing team in racial terms, which implied that the black applicant would fit less well in, would not have needed to have gone on to consider any questions of drawing inferences, if the words "Mr Gunn was much younger and would clearly fit in to the existing team in racial terms" was a thought, so to speak, of the employers. It seems to us with great respect to Mr Neaman, that it is clear that the Tribunal is attributing to the employers the statement that the white person, Mr Gunn, would clearly fit into the existing team. The word "hence" is important and deliberate.
13. Reference can be made to page 69 of our file, that is the answer to the questionnaire, where it is said in relation to the statistics position that the white candidate had previous experience of working in a team environment. In addition, there were references in the evidence to which our attention has been drawn, that is, the witness statements of the witnesses who gave evidence. Normally, we are reluctant to look at these, but consider it right to do so in this case. Paragraph 24 of Ms Henderson's witness statement reads like this, and I cite only the relevant part:

"Of course, I had already interviewed (the Applicant) for the data collection role only 3 days earlier, as had Ariane Andrew, so we did not interview him again. He was however, able to meet the other members of the statistics team, for around 20 minutes each."

And then at paragraph 27:

"Mario (the Applicant), on the other hand, had no German language ability. This was our primary concern. However, Mario also had very little practical experience in the statistics field."

In this paragraph, she is explaining why it was that Mr Gunn had been preferred to Mr Cumandala and in the witness statement of Ms Andrew at page 52, she said this:

"The primary concern of the team with Mario, however, was that he had no German language ability. Although he spoke fluent Spanish and Portuguese, there are no Spanish and Portuguese speaking countries within the G7 group. Mario had indicated that he spoke basic French but existing members of the statistics team already covered this language. This in itself may not have prevented Mario from getting the job but the next day we interviewed Alistair Gunn.

Alistair Gunn had an MA in Economics with French (in which he was fluent). He was fluent in both written and oral German as well as competent in Italian and Spanish. He had come across better than Mario during his interviews. He also had previous experience of working in a team environment and had a suitable academic background in Economics, including academic and practical knowledge of statistics.

Whilst therefore, Mario was a good candidate, Alistair was an excellent candidate and we therefore had no hesitation in putting him forward for final interview …"

14. On that basis, it was plain that fitting into the team was regarded as an important aspect of the job, hence the references to which we have ourselves made reference and hence the word "hence" in the Tribunal's decision, because the reference to team work in the answer to the questionnaire can only have been a reference to what the employers themselves were saying. In that sense, the previous sentence makes it clear that they were not committing the error themselves of assuming that a white person would clearly fit into an existing team of white people, whereas a black man would not; rather they were explaining why it was that the employers had rejected the Applicant for working with this team and that is reinforced by their rejection of the overt reasons which were advanced by the employers as to why they did not accept him, namely that he was not fluent in German.
15. Secondly, the Tribunal indicate that the other points relied upon by the employers suggesting that the decision made on merit should be rejected. That argument, based as it was apparently on Mr Gunn's additional expertise in statistics, they considered to be spurious. They went on to say that given that there was a difference in race between Mr Cumandala and the successful applicant, combined with that difference being extended to other members of the team which was effectively making the decision who would join them, and given that Mr Cumandala was less favourably treated by not being appointed, they were entitled to a cogent and acceptable explanation from the Respondents and they indicate that the explanation which had been given, which they have just dealt with, was unsatisfactory.
16. In those circumstances it seems to us difficult to understand their conclusion that they have balanced factors suggesting that the appointment was for reasons other than race. It was submitted to us that it was permissible for an Industrial Tribunal or Employment Tribunal to say "we do not know what the reasons were, but we are not prepared to infer that they were on grounds of race". If there are factors which can be identified which could justify the non-selection, that is there are reasons or factors other than race which could justify his non-selection, then obviously it would be open to them to identify those factors and to indicate that that was the reason why they thought the appointment had not been made. But if, having looked at the case as they have, and it becomes plain that the only reason why he was not selected was the one factor, namely his race or colour, then it seems to us that the inference must be drawn. In this case, having made a finding that the white person would clearly fit into the existing team in racial terms, with the clear implication that a black person would not clearly fit into the existing team in racial terms, it seems to us that the drawing of an inference was not necessary. They should have gone on to find that the case on direct discrimination had been made out.
17. Accordingly, it seems to us clear in this case, and it is a somewhat remarkable conclusion because in my experience it has rarely happened, the Tribunal have found in favour of the Applicant on one ground which we reject, and has found against the Applicant on another ground which we uphold.
18. It seems to us that there is something wrong with this decision, in the sense that we respectfully disagree with it. A question arises as to whether in the light of our finding in relation to the Statistics position, the matter should be remitted back for a further hearing, or alternatively, whether we should draw the inference ourselves. It seems to us that we should adopt the approach that Lord Donaldson in Kelly v Trust House Forte which is that we should not make judgments ourselves if there is room for more than one argument about it. But it seems to us on the facts of this case, having looked at paragraph 45, that there is indeed only one conclusion which can be drawn, namely that Mr Cumandala was rejected for the Statistics position because of his race.
19. In those circumstances it seems to us that there would be no merit in remitting the matter back to the same, or to a different Tribunal. There is only one conclusion which can emerge from the analysis of the facts carried out by the Employment Tribunal which is that he was unlawfully discriminated against. Accordingly, we substitute for the Tribunal's decision a finding of unlawful discrimination on grounds of race and we make a finding that the Applicant was not unlawfully discriminated against on grounds of sex in relation to the first appointment. The consequence of that will be as the Tribunal had anticipated arising from its first decision on the Data Collection position that there must be a remedies hearing at which questions of remedy can be considered. We think that it would be sensible if that was to be carried out by the same Tribunal since they are aware of the background and the issues, but it does not seem to us to be essential that the Tribunal should necessarily be similarly composed. We say that because we do not know whether the two lay members are still currently available or not and obviously a remedies hearing should take place as soon as possible and if by having the same Tribunal it is going to greatly delay the matter, then there will have to be a different Tribunal to consider remedy.

The Jurisdiction Issue

20. It seemed to us that the Tribunal's decision could be described as putting the case on the horns of a dilemma. If the Applicant was to work wholly or mainly within Great Britain, then it seems to us that the commuting problem does not in effect arise. If on the other hand he was to work wholly or mainly outside Great Britain, then we are satisfied that the Tribunal would have no jurisdiction to deal with the matter. We are reluctant to say much more about this issue in this case. Save that, it seems to us that it would have been more helpful if the Tribunal had asked themselves; what was the structure of the Respondent company in terms of how people were employed, whether they were seconded out to other places, and if once they had been abroad they returned again. It would have been better if they had looked at the precise contract which he was going to be invited to sign, or given examples of the contractual arrangements, whether there was a mobility clause for example, and then some information about the majority of employees in the United Kingdom as to whether they went abroad from time to time.
21. On the basis of that information, they would have been able to have arrived at a well informed judgment as to whether when he was taking up this permanent position one could say that he was being recruited to work mainly abroad or whether he was being recruited to work mainly in the United Kingdom. Just on the pure statistics of 18 months in Madrid and four months in London, we would agree with Mr Neaman that that was mainly abroad. But we also agree with Mr Wiltshire that a longer term view needed to be taken, and it was for that reason that we think that the Tribunal have not carried out quite as much investigation as we would have wished in relation to that, of the sort that I have indicated.