United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR I HARTLEY (Solicitor) Instructed by: Mr K P Davis The Keith Davis Consultancy Victoria House 3 Hove Villas Hove East Sussex BN3 3DH
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This is an employer's appeal against a majority decision of an Employment Tribunal sitting at Reading on 5^th May 1998, upholding the applicant employee's complaint of unlawful racial discrimination. That decision, with extended reasons, was promulgated on 15^th May 1998.

Background

1. The applicant, Mrs Kelly, is of Asian racial origin. She commenced employment with the respondent at their hairdressing salon in High Street, Slough as a hair stylist in August 1992. In November 1996 she was promoted to deputy manager of that salon. Prior to that promotion she had applied, unsuccessfully, for the post of deputy manager in September 1994. A white woman was appointed. Again, in 1995, she applied for the post of manager of the salon. She was again unsuccessful, a white woman, Miss Rolfe was appointed. Miss Rolfe recommended the applicant for appointment to the post of deputy manager in 1996. In June 1997 Miss Rolfe left her employment suddenly and for a time the applicant acted up as manager. The Regional Manager, Mrs Louise Stockley, then transferred an existing white manager, Miss Caroline Brace, from the respondent's Asda branch to cover the manager's vacancy at the High Street salon.
2. The post of manager at the High Street then appeared in the respondent's internal vacancy list at Mrs Stockley's request. There were three applicants for the post; Miss Brace, the applicant and a third candidate who was then employed at the High Street salon.
3. Mrs Stockley interviewed all three candidates. Thereafter she considered the matter and concluded that Miss Brace was the best candidate. In Mrs Stockley's view, Miss Brace had overachieved in her role of manager at the smaller Asda unit; she was experienced in the role of manager; conversely the applicant disappointed Mrs Stockley with her lack of knowledge and a perceived inability to run the salon on a temporary basis whilst acting up. That was Mrs Stockley's evidence.
4. Miss Brace was duly appointed to the post.

Employment Tribunal Decision

5. We begin with the tribunal's self-direction as to the law contained at paragraph 3 of their reasons. Having observed that direct evidence of discrimination will be rare, the tribunal said this:

"3 … In the absence of any such direct evidence, an applicant has to come to the Tribunal and prove, on the balance of probabilities, the basic facts that he or she alleges and invite the Tribunal to draw the inference from those facts that the reason for less favourable treatment is to be found in the colour of the applicant's skin or her racial origin. It is a matter for the Tribunal to draw the appropriate inference as it sees fit from the primary facts. The Tribunal must give the respondent an opportunity of putting forward its explanation for the treatment that the applicant has received and then consider that explanation before deciding what, if any, is the appropriate inference to draw. If the explanation that has been put forward is a good one, it may be less likely that the Tribunal will draw the inference of discrimination. If the explanation is not a good one, then it may be that the Tribunal will be more ready to draw that inference, but it is always a matter for the Tribunal to decide in any given case."

6. It is our experience that in race and sex discrimination cases Employment Tribunals frequently direct themselves specifically in accordance with the guidance provided by Neill LJ in King v The Great Britain China Centre [1991] IRLR 513, at paragraph 38. That guidance has since received the imprimatur of the House of Lords. See Zafar v Glasgow City Council [1998] IRLR 36. We cannot improve on it.
7. At paragraphs 4 and 5 of that guidance Neill LJ said this:

"(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law, but, as May LJ put it in Noone v North West Thames Regional Health Authority [1988] IRLR 195, "almost common sense".

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

8. The need to make findings of primary fact before considering whether it is appropriate to draw an inference of unlawful discrimination has been emphasised by the Court of Appeal in Chapman v Simon [1994] IRLR 124.
9. The material conclusions of the members of the tribunal are set out at paragraph 7 of their reasons in this way:

"The applicant's case is that having applied on several previous occasions and not having been successful the proper inference that we should draw from these facts, including the fact that Miss Brace had been sent to Slough ahead of any formal appointment, was that the reason that the applicant was not being successful was attributable to her colour. The respondents' case is that that is not so, but that the reason was on an assessment of the applicant's merits compared with those of Miss Brace and the other candidate, that the applicant's skills were not adequate according to the respondent's view of the needs of the job and it was for that reason she was not appointed. Bearing in mind the lack of any information as to the monitoring of the equal opportunities policy and the fact that the applicant had been turned down for promotion on previous occasions, we have asked ourselves whether the appropriate inference to be drawn from this is that she was discriminated against on the grounds of her colour. We are unanimous in the view that the respondent's evidence leaves a great deal to be desired. The majority view is that having regard to all the facts of this matter the appropriate inference to be drawn is that of discrimination. The minority view is that whilst the position is far from satisfactory the minority member is not prepared to draw the inference, but takes the view that it is impossible to draw any conclusion one way or the other. The majority view prevails and the application succeeds."

The Appeal

10. The principal submission made by Mr Hartley on behalf of the respondent employer is this. Quite simply the tribunal has failed to make any findings as to the adequacy or inadequacy of the respondent's explanation in evidence as to why the applicant failed to obtain the post of manager in 1997, or as to her earlier failures to obtain promotion. We think, in the absence of any representations made by or on behalf of the applicant today, that that submission is well-founded. It may be significant that in their self-direction in paragraph 3 of the reasons, the tribunal appear to allow of the possibility that even if the employer puts forward a good explanation for the difference in treatment and the difference in race between the applicant and her comparator, here Mrs Kelly and Miss Brace, it is still open, although less likely, that the tribunal will draw the inference of unlawful discrimination. If so, that is not, in our judgment a proper approach as explained in King and Zafar.
11. Certainly, when considering the reasoning of the majority in paragraph 7 of the reasons, whilst the respondent's case as to why the applicant failed to secure the post instead of Miss Brace is set out, there is then no finding as to whether or not that explanation is accepted. Similarly, reliance is placed on the fact that Mrs Kelly was turned down for promotion in the past, but again no findings are made as to the adequacy of the explanation given by the respondent's witnesses for her being rejected for promotion on those earlier occasions.
12. The basis of the majority's conclusion appears to be a finding that the respondent had not provided information as to its monitoring of its equal opportunities policy (a finding which, Mr Hartley submits, was unsupported by the evidence) and the fact of her earlier rejection for promotion, coupled with the difference in race and treatment between Mrs Kelly and Miss Brace. In our judgment that is not a permissible basis on which to draw the inference of unlawful discrimination in the absence of any findings of fact as to the adequacy of the explanation advanced on behalf of the employer for the alleged discriminatory act, that is the appointment of Miss Brace rather than Mrs Kelly.
13. Mr Hartley takes further points in the appeal but accepts that, unless we are persuaded to reverse the tribunal decision and substitute a declaration that the complaint is dismissed, no useful purpose will be served by developing them, since the alternative course is that the matter be remitted to a fresh Employment Tribunal for a complete rehearing. That is the course which we propose to take on allowing the appeal. We are not, as an appeal tribunal, in any position to judge the adequacy of the employer's explanation. That is a matter of impression for the fact finding tribunal which sees and hears the witnesses.
14. In these circumstances we allow the appeal and set aside the decision of the Employment Tribunal. It follows also that a later remedies decision dated 23^rd March 1999 is also set aside. The matter is remitted to a fresh Employment Tribunal for a complete rehearing.