United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S KUTTAPAN Representative


 


MR RECORDER LANGSTAFF QC:

1. This is a preliminary hearing in an appeal, which Mr De Silva seeks to bring against his employers, the London Borough of Croydon. He wishes to appeal against a decision of the Croydon Employment Tribunal, following a hearing over some 5 days in February and 3 in March 1999, the decision in which was promulgated as late as 9 August 1999 following that hearing. A review of this decision was refused on 1 October 1999.
2. The Facts

I have taken the background facts from the Employment Tribunal's extended reasons. They are these: -

a) In November 1973 Mr De Silva joined the London Borough of Croydon as an Assistant Civil Engineer.

b) In 1987 he applied for the post of Senior Assistant Engineer but was unsuccessful; a Mr Wickens, who we understand to be white, succeeded.

c) In 1991, Mr Wickens was appointed Acting Assistant Director. Mr De Silva raised a grievance about the nature of that appointment. However, also in 1991 Mr De Silva was promoted to become Group Engineer (Highways Improvements).

d) In 1992, Mr De Silva complained that when the post of Principal Civil Engineer was advertised, the interview system was unfair to him.

e) He publicly criticised the equal opportunities policies of Croydon on 8 October 1992 at a forum, which was convened, as we understand it, to consider some of the equal opportunities aspects of work for the London Borough of Croydon.

f) In 1993 Mr De Silva complained about the appointment of the Chief Executive, a Mr Wechsler. He accused the London Borough of Croydon of a breach of the proper and appropriate procedures.

3. However his claim which was brought under the Race Relations Act 1976, complaining of unfair treatment with regard to promotion, did not directly arise out of any of these events. It was a complaint of direct race discrimination and victimisation because his employers failed to short list him for the post which had become vacant in November 1997 of Assistant Director (Environmental Management). As to direct discrimination of course the principles are well known. Under s.1 of the 1976 in essence 2 matters have to be proved, on a balance of probabilities, by a claimant.

First that there has been less favourable treatment of the claimant than that afforded to other persons.

Secondly that, that less favourable treatment has been because of his race.

4. Here Mr Kuttapan, who has acted as Mr De Silva's representative and did for part of the Tribunal hearing below, is quite frank about it. He says that the reason why Mr De Silva was excluded from the shortlist was deliberate on the part of the London Borough of Croydon. The Council was guilty of institutional racism which they admitted only following the Lawrence Inquiry and the McPherson report. He says that the Council wished to appoint a white candidate to the post. That white candidate was less well qualified than Mr De Silva. In order to prevent a claim for race discrimination succeeding, the appropriate course was to exclude Mr De Silva, by holding that he failed to meet a number of criteria which were preliminary qualifications for interview. He points to the fact that the internal candidates, Mr De Silva apart, were white. The external candidates who made the short list were black, or at least may have been from other minority ethnic communities, but they would not be expected to know of any difference in qualification between the intended successful candidate and those which they themselves possessed.
5. The advertisement, so the Employment Tribunal found, was circulated internally on 20 October 1997. On 6 November 1997 Mr De Silva was told that he had not been shortlisted.
6. His allegations that there had been less favourable treatment were supported by two errors, which were uncovered during the course of evidence in the Employment Tribunal. There had been what is described as a "clerical error" in that the criteria, (there were 12 of them which applicants were supposed to meet to be shortlisted) were said to be evenly weighted. The indication should have been that some had greater weight than others did. Secondly the interviewing and selecting panel consisted of 3. Mrs McCutchon was one. She sifted the applications in the first place. She gave each applicant a score. Because of the need to restrict the numbers going through to interview she chose to have a cut off point of 10 criteria met, beyond which any individual would be interviewed. Mr De Silva, she found, had 9. The error was that she found that someone who had 10 was to be classed as if he had 9. This was an arithmetic error on her part, but the curiosity was that it was not picked up by either of the other 2 members of the panel who were supposed to make an independent assessment.
7. I interpose to say that at one stage during the hearing, Mr Kuttapan had persuaded us that there might be an error of law here on the part of the Tribunal, in that they placed weight upon the fact that all 3 of the interviewing members of the panel had reached an independent and separate assessment of the criteria for each applicant. Given that it was hardly likely that all 3 would each independently have missed the fact that 1 applicant actually had met 10 criteria, yet all coincidentally scored him as having met 9, there was persuasive, indeed compelling, evidence that they had merely rubber stamped Mrs McCutchon's views. There was other evidence which suggested that Mrs McCutchon's evidence might have a taint of unreliability about it. But, first of all, Mr Kuttapan has told us that he made that argument very clearly to the Tribunal. Secondly it appears to us from the way in which the Tribunal described the matter in paragraph 52, in particular the way in which they appeared to place it in the chronology of events, that the arithmetic error occurred, not before the other 2 members of the interviewing panel had had an opportunity to score the applications, but after they did so. Therefore, the Tribunal found that it happened before she, acting as secretary to the panel, wrote letters inviting the candidates for interview.
8. Accordingly, we thought that there was nothing which necessarily falsified the Employment Tribunal's conclusions to which they ultimately came.
9. The point was taken before us, and taken in the skeleton argument, that if the Council had approached the matter appropriately, they would have been bound to score Mr De Silva as having met more than 10 criteria, 10 or 11 was what Mr Kuttapan said to us in the course of argument. The Employment Tribunal in fact examined the 3 criteria out of the 12 which it is said that Mr De Silva did not meet. In respect of those criteria they concluded, at paragraphs 54 and 55, facts from which it could be deduced that there was in relation to the first of those criteria no unfairness to him. At paragraph 56, in respect of the second they concluded that the marking was appropriate. At paragraph 58 they concluded that, as to the third, there was ample basis for giving him the mark which they did. They also expressed themselves as satisfied that there was a consistent approach as between candidates.
10. With the exception of the possibility of bias, to which I shall come, it seemed to us there was therefore no finding to which the Employment Tribunal were not entitled to come. The conclusions that they expressed in the last two pages of the decision are these. At paragraph 73 as to Direct Discrimination this is said:

73. "Mr De Silva was not shortlisted for interview, whereas certain others were. However, we were not satisfied that the failure to shortlist him was on the grounds of race. We accepted the Respondent's reasons for the failure to shortlist, and were satisfied that where the Respondent's shortlisters had failed to award Mr De Silva an M, this was in each case a genuine and justified score which was consistent with their scores of other candidates, regardless of their race."

We pause there. That was a finding that they were as a Tribunal entitled to come to on the evidence before them. They might equally have come to other conclusions. It is - and this is important - a finding that there was no less favourable treatment. Of the 2 requirements to succeed in a claim under s.1, this Employment Tribunal thus concluded that there was neither less favourable treatment nor was there any racial discrimination or any racial reason for any such treatment as there might have been.

11. We pass on to the second claim, which was victimisation. This is less obvious because the courts have within the last 2 years had difficulty in understanding the precise circumstances in which discrimination by victimisation may occur. At the time of the hearing this Tribunal considered itself bound by the Court of Appeal decision in Nagarajan v London Regional Transport. By the time of the review, that case had gone to the House of Lords. Whereas it had been authority for the proposition that there could be no victimisation unless it was conscious victimisation, the position was different in the House of Lords. In effect, discrimination is a question of factual causation and not a question of intent. Accordingly, the Chairman was asked to review the decision. She declined to do so on the basis that the Court of Appeal decision bound the Tribunal's hands. Had the matter rested there, we should felt unease at the decision and would have permitted this to go through to a full hearing. However, we have to ask ourselves (and indeed we asked Mr Kuttapan for his help), what difference the change in the law made on the facts of this particular case. The answer has to be none, because there had been no finding of any less favourable treatment upon which the question addressed by the Nagarajan case depends. Mr Kuttapan did not point us to any particular example of a finding of fact which would or should have led to a different conclusion in the light of the House of Lords decision, from that to which it would have led in the light of the Court of Appeal decision. Accordingly we think that there is no arguable ground on that basis.
12. The third matter taken before us is the allegation of bias. There are two principal points. The first is that one member of the Industrial Tribunal had previously stood for election to the Croydon council. This was made known by the Chairman to Mr De Silva at the outset of the hearing. He indicated that it was acceptable to continue. The point made before us is that he would have been in no easy position to object to the Tribunal continuing. He was effectively on his own, he did not wish and would not wish to offend a Tribunal which might anyway have gone on to hear his claim. Essentially the argument is that he should have been told beforehand of this particular matter. We have to ask however, as to bias, a 2-stage question.

First of all, is there evidence of actual bias?

If not, has the matter been conducted in such a way that there might be a reasonable suspicion of bias, even though none might be proved?

We say at once, there is no proof of actual bias. So far as reasonable suspicion is concerned, the test is not what was actually in the mind of one of the parties, but what the reasonable observer might have concluded. We cannot think, particularly in the light of the recent Locabail [2000] IAU ER 65 decision in the Court of Appeal, that the reasonable observer would have been justified in thinking that, the point having been raised with Mr De Silva and him having indicated that he was content for the claim to proceed, there was any reasonable suspicion of bias that an objective bystander would thereafter have entertained.

13. The second allegation of bias was that the Chairman intervened at a critical stage in questioning in support of a witness. This is Mrs McCutchon who as I have said was critical to the Respondents case. She is said to have slapped down a fellow member of the Tribunal who was of the same racial origin as Mr De Silva. He at any rate is Indian, although Mr De Silva is, as I understand, Singhalese. The Chairman has addressed the affidavit which Mr De Silva has sworn in comments, as she is required to do. She has given an explanation which to us is understandable. It seems to us that there is no sufficient evidence here for us to conclude that the Chairman was biased against Mr De Silva. Indeed, she in her comments makes the point that the Tribunal were unanimous in their view. Although we must be very careful in considering any allegation of bias, to understand what has happened and to scrutinise it, we do not think that there is here any reasonable suspicion, which an objective bystander would have entertained, that because of that incident, (particularly since it is disputed) the decision was different from that which it would otherwise have been or that indeed that the incident had any influence upon the decision of the Employment Tribunal.
14. We are sure that Mr De Silva sees the activities of the London Borough of Croydon, at least in the past and possibly in the present, as being motivated by racial discrimination against him. We feel that although, no doubt, he genuinely feels this it is not a view which would be shared by the objective outsider so far as the Tribunal is concerned. He suggested through Mr Kuttapan that there was a conspiracy, in effect, between the council and the Tribunal. He suggested that the Tribunal Chairman would have been reluctant to find in his favour because, she being black and one of the lay members being from the Indian sub continent, there was a majority of those who were black on the panel. She might therefore have thought, and it was submitted to us probably did think, that she would be accused of racism had she found in Mr De Silva's favour. She therefore concluded the other way. This is supposition of a very extreme kind. We do not think that there is any real substance in it. Despite the way in which Mr Kuttapan showed us his conviction in his cause, we do not think that there is a properly arguable point of law in this appeal.
15. For those reasons we decline permission to take this to a full hearing.