United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J McMULLEN QC & PROFESSOR R LEWIS (of Counsel) Group Solicitor London Borough of Hillingdon Civic Centre Uxbridge Middlesex UB8 1UW
For the Respondent	MS I OMAMBALA (of Counsel) Head of Employment Rights UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE CLARK

1. This is an appeal by the London Borough of Hillingdon (Hillingdon), the Respondent before the London (North) Employment Tribunal (Chairman: Mr M S Rabin), sitting on 13 – 16 July 1998, and in private for deliberation on 30 July, against that Employment Tribunals decision, promulgated with extended reasons on 2 September 1998, upholding the Applicant, Mr Scott's complaint of victimisation contrary to Sections 2 and 4(1)(a) and 4(1)(c) of the Race Relations Act 1976. A further complaint of direct discrimination contrary to Section 1(1)(a) and 4(1)(a) and (c) of the Act was dismissed. There is no cross appeal against that latter finding.

Background

2. It is convenient to set out the material primary facts as found by the Employment Tribunal chronologically.
3. The Applicant is of black African-Caribbean racial origin. He holds an Honours degree in Chemical Sciences from Leeds University and a Masters degree in Public & Social Administration, specialising in Housing Policy and Management from Brunel University.
4. From 1 April 1992 - 31 December 1995 he was employed in the Housing Department of the London Borough of Ealing (Ealing) as a Housing Advisory Service Manager. In February 1996 he presented a complaint of racial discrimination against Ealing to an Employment Tribunal.
5. He found fresh employment with the Royal Borough of Kingston-upon-Thames in their Housing Department. Whilst in that employment he responded to an advertisement placed in the National press by Hillingdon for a Housing Needs Manager on 29 January 1997. He, with three other applicants, was short-listed for the post following a selection process administered by two Officers of Hillingdon, Mr Cheales and Mrs West.
6. The four short-listed candidates were interviewed by a panel of three councillors, Mr Davey, Ms Allen and Mrs Dann on 2 April 1997. Following those interviews the panel selected a white male candidate, DW for the post.
7. DW declined to take up Hillingdon's offer of the post and on 16 April 1997 the job was re-advertised in the Guardian newspaper, with a note that previous applicants need not re-apply.
8. Distressed by this, the Applicant telephoned Mr Cheales on 22 April and Mrs West on 1 May, requesting feedback. He tape-recorded those conversations.
9. On 19 May 1997 the Applicant's tribunal case against Ealing commenced and on 21 May it was adjourned part heard.
10. On 10 June 1997 he presented his first Originating Application against Hillingdon to the Employment Tribunal alleging direct race discrimination. The unlawful discriminatory acts alleged were first, Hillingdon's decision not to employ him and secondly, the decision not to consider him for the post if the preferred candidate, DW, dropped out. Both decisions were taken by the three Councillor interviewing panel on 2 April 1997. The Applicant was told on 3 April 1997 that he had been unsuccessful; he learnt that he would not be further considered when he read the Guardian on 16 April. This was also confirmed by Mr Cheales on the telephone on 22 April.
11. The re-advertised post was eventually offered to and accepted by an applicant of Indian racial origin in June 1997.
12. The resumed hearing of the Applicants case against Ealing commenced on 4 November 1997. The claim was then settled. However, during the hearing he learned of communications between officers of Hillingdon and Ealing about his complaints against each Council.
13. On 2 February 1998 he presented his second Originating Application against Hillingdon, alleging victimisation. It was his case that he had done a protected act within the meaning of Section 2(1)(a) of the Race Relations Act 1976, that is, brought a complaint of unlawful racial discrimination against Ealing in February 1996. It is not disputed that that was a protected act within the meaning of Section 2(1)(a). He alleged that the decision by Hillingdon on 2 April 1997 not to appoint him to the Housing Needs Manager Post and thereafter not to further consider him for that post if and when the chosen candidate, DW, dropped out, was less favourable treatment by reason of his having done that protected act than treatment afforded to others who had not done a protected act. The issue was whether he had established the causal link between his non-selection for the post and the protected act.
14. Although it is unnecessary for an Applicant to show that the Respondent was consciously motivated by the protected act in treating the Applicant less favourably than his comparator (a person who had not done a protected act), see Nagarajan -v- London Regional Transport (1999) ICR 877, it is equally clear that in order to establish the necessary causal link between the protected act and the alleged discriminatory treatment, the Applicant must show that the Respondent knew of the protected act at the time of the discriminatory treatment, or, in an appropriate case, suspected that he had done the protected act. Race Relations Act 1976 Section 2(1).
15. The need to show the relevant knowledge is also clear from the speeches of Lord Steyn 893 C – D and Lord Nicholls, 886B in Nagarajan. The protected act must have a significant influence on the decision to treat the Applicant less favourably (per Lord Nicholls 886F). It need not be the sole cause of the treatment complained of.
16. For completeness we should add that on 4 February 1998 the Applicant presented a second Originating Application, alleging victimisation, against Ealing. That complaint was subsequently withdrawn by him on 6 May 1998.

The Respondents Knowledge

17. We are satisfied that it was no part of the Applicant's case that Hillingdon suspected, as opposed to knew, that he had presented a complaint against Ealing (the protected act) when his application for the post of Housing Needs Manager was rejected on 2 April 1997, and he was not placed "in reserve" should the chosen candidate, DW, drop out. That is clear from his second Originating Application against Hillingdon and the Employment Tribunal's summary of the issues at paragraph 1 of their reasons and the submission made in closing on his behalf by his representative, Mr Snow, recorded at paragraph 12 of the reasons. The issue, on the victimisation claim was, did the Respondent know of the protected act on 2 April 1997?
18. The Employment Tribunal found that Councillors Dann and Davey made the decisions not to appoint the applicant and to exclude him from the subsequent re advertisement (reasons, paragraph 3). That finding is reinforced by the finding at paragraph 6 that Mrs West enquired about the other candidates after the Councillors had chosen DW, to be told that DW was the only candidate who was appointable.
19. It follows that the simple factual question for the Tribunal was, did the Councillors know on the 2 April 1997 that the Applicant had an outstanding complaint against Ealing? If not, this claim of victimisation was bound to fail.
20. Each of the three Councillors gave evidence. Each denied knowledge of the protected act when reaching their decisions on 2 April 1997 to select DW for the post and to rule out the Applicant (and the other two short-listed candidates) in the event that DW dropped out. Mr Davey said that he thought he learned of the Ealing claim in late 1997; Ms Allen said she only learned of it one month before this Employment Tribunal hearing in July 1998; Mrs Dann remembered very little about anything: she did not even recognise Mr Scott at the Employment Tribunal.
21. At to the officers' state of knowledge: -

(1) Within the Section of their reasons headed 'Findings of Fact' the Employment Tribunal made this finding at paragraph 10:

"Mrs West was a bit vague as to the date of the first conversation with Sue Gomer, who had left Hillingdon in February 1997 to become Chief Housing Officer at Ealing, or even who had initiated the conversation, but she was certain that it could not have been earlier than June 1997 (the month in which the Applicant presented his first complaint against Hillingdon), but she was certain that it could not have been earlier than June 1997."

Mrs West, we interpose, had, with Mr Cheales interviewed some ten applicants for the post on 3 March 1997, out of which four, including the Applicant, had been short-listed for the Councillor panel to interview.

(2) In October 1997 Yvonne Ramsaran, a solicitor with Ealing, contacted Franzine Johnson, the solicitor at Hillingdon with conduct of these claims, asking for details of the claims. Thereafter, Mr Cheales telephoned Ms Ramsaran, at Ms Johnson's suggestion, to enquire about the progress of the Applicant's claim against Ealing. That, the Employment Tribunal found at paragraph 10, raised suspicions in the Applicant's mind and led to his second victimisation complaint against Hillingdon.

22. Those are the relevant findings of primary fact as to the Respondent's state of knowledge. An application by Mr Lewis, counsel for Hillingdon below, to put in evidence a written statement from Ms Gomer was refused by the ETS. (Mr Lewis' affidavit sworn on 12 November 1998 in these appeal proceedings. Paragraph 16 – 19).

The Employment Tribunal Decision

23. We should first record, taken from Mr Lewis' affidavit, the contents of which are not challenged by the Chairman in his written comments dated 10 March 1999, that at a private meeting attended by the members of the Employment Tribunal and the representatives of the parties on the fourth day of the hearing, 16 July 1998, the Chairman indicated that the Employment Tribunal had formed no definitive view of the victimisation claim (having indicated that the Council had major difficulties on the direct discrimination claim) but on what the Tribunal had heard so far it appeared to be the case that the Applicant had "not passed the evidential threshold." At a second private meeting on the same day the Chairman said, no further evidence having been heard and no settlement having been reached between the parties, that he wanted to make it clear that "the door was ajar" to victimisation as the explanation for the Council's treatment of Mr Scott.
24. In the event the Employment Tribunal rejected the Applicant's claim of direct discrimination and upheld his complaint of victimisation. Their reasoning may be summarised as follows: -

Direct Discrimination

25. Correctly applying the guidance given by Neill LJ in King –v- Great Britain China Centre (1992) ICR 516, 528F – 529C, approved by the House of Lords in Glasgow City Council -v- Zafar (1998) ICR 120 they held:

(1) Was the Applicant less favourably treated than DW? Answer yes.

(2) Was there a difference in race between the Applicant and DW. Again, the answer was yes.

(we would add that the same answers apply to a comparison with the Indian candidate who was finally appointed to the post in June 1997).

(3) Had the Council provided an adequate explanation for the difference in treatment? So far as DW was concerned the Employment Tribunal answered that question in the negative. They were not persuaded by evidence given by the Respondent's witnesses that DW was better suited to the post than the Applicant.

(4) Was the treatment on the grounds of the Applicant's race? The Employment Tribunal rejected the Applicant's claim of direct discrimination on this ground.

Victimisation

26. Having rejected race as a reason for the less favourable treatment the Employment Tribunal went on to conclude that the reason for the treatment was the doing of the protected act by the Applicant.
27. The reasoning is contained within paragraph 26 of their reasons. It proceeds in this way:

(1) The Applicant was employed by Ealing until 31 December 1995.

(2) He presented his first complaint against Ealing in February 1996

(3) Hillingdon is adjacent to Ealing and Hillingdon has some Council tenancies in Ealing and vice-versa.

(4) At least one Senior Housing Official in Ealing, Ms Gomer, used to work for Hillingdon.

(5) Mrs West admitted that she first spoke to Ms Gomer about Mr Scott some time after he had lodged his first application against Hillingdon in June 1997.

(6) Mrs West said in evidence that she could not recall whether the main reason for the telephone call (with Ms Gomer) was to discuss Mr Scott, but when asked she confirmed that he had applied to the Industrial Tribunal on the basis of racial discrimination (the first complaint against Hillingdon).

(7) The Employment Tribunal asked themselves the question; why should Sue Gomer raise the subject of Mr Scott unless she knew (or was told) that Mr Scott had applied for the job in Hillingdon and had commenced Industrial Tribunal proceedings against them.

(8) They had the evidence of Mr Cheales who, for no reason which satisfied them, had been in discussion with Ms Johnson, Ealing's solicitor, about Mr Scott's race claim.

(9) All three Councillors denied any knowledge of Mr Scott's race claim until long after 2 April 1997 (see earlier).

(10) They conclude:-

"In the absence of any satisfactory explanation from the Respondents and in the absence of any other reason, we cannot accept the Respondent's evidence that there was no knowledge on the part of one or more persons (be they Councillor or Officer) that Mr Scott had brought a race discrimination claim against Ealing or that such person or persons would not have suspected that he had brought a race discrimination claim against Ealing."

28. The Employment Tribunal went on to find that although they could accept that the Councillor panel might have preferred DW to the Applicant for reasons which had nothing to do with race, they thought it legitimate from the primary facts to infer on the balance of probabilities that the reason why he was denied selection as the next best candidate on re-advertisement was because he was targeted as a trouble-maker and a person who had brought a race discrimination claim against a neighbouring authority. They then add: -

"We recognise the lack of hard evidence to justify this inference."

29. But go on to point out the difficulty facing Mr Scott in producing such evidence. It was, in the Employment Tribunals view, the only explanation for the Respondents conduct. The claim of victimisation succeeded.

The Appeal

30. In this appeal Mr McMullen QC, appearing with Mr Lewis, takes two points, the substantive ground and the procedural ground. We first heard Mr McMullen on the substantive ground and Ms Omambala in reply. Having done so we reached a firm conclusion in favour of Mr McMullen's submissions. In these circumstances it was unnecessary to consider the procedural ground, which was directed to certain observations made by the Chairman in private hearings, that is, with the parties excluded and their representatives only present, on which we have touched earlier in this judgment. We now set out our reasons for allowing this appeal.
31. An Employment Tribunal decision will be perverse in the true legal sense where a material finding of fact is made which is unsupported by any evidence. Piggott Bros Ltd -v- Jackson (1992) ICR 85, 92D, per Lord Donaldson M R.
32. In Chapman -v- Simon (1994) IRLR 124, the Court of Appeal emphasised the need for an Employment Tribunal to make findings of primary fact from which it is legitimate to draw an inference of unlawful discrimination (per Balcombe LJ, paragraph 33(3)). The inference should not be based on speculation or an 'intuitive hunch' (Peter Gibson LJ, paragraph 43).
33. Although not cited to us by Counsel, we have also considered the judgment of Leggatt LJ in Qureshi –v- London Borough of Newham (1991) IRLR 264 (assumptions) and the observations of Mumery LJ on the drawing of inferences in Effa -v- Alexandra Healthcare NHS Trust (EATRF 1998/1330/A1. 5 November 1999. Unreported).
34. Against the background of those statements of the law we turn to the Employment Tribunal's reasoning in this case. In our judgment it is not permissible for the Employment Tribunal to reason that because the explanation advanced by the Respondent in answer to the direct discrimination claim was considered unsatisfactory and since the Employment Tribunal rejected the Applicant's case that has less favourable treatment was on racial grounds, the only possible explanation was that he was so treated because he had done a protected act. That seems to us to amount to an extension of the error in approach identified by the House of Lords in Zafar.
35. More directly, the Employment Tribunals primary findings of fact pointed all one way. The panel of Councillors did not know of the protected act on 2 April 1997 and the relevant officers did not know of it until at the earliest June 1997 (Mrs West). The finding that the Employment Tribunal "could not accept the Respondent's evidence that there was no knowledge on the part of one or more persons (be they Councillor of officer)" is wholly unsupported by any evidence. Such actual findings as were made indicate precisely the contrary. As Mr McMullen submits, if the Employment Tribunal, as they were quite entitled to do, rejected one or more witnesses evidence they should identify each witness and state why their evidence was rejected. The flaw in the Employment Tribunals reasoning was to jump from a finding of no racial discrimination to a finding that in those circumstances there must have been victimisation. It is in our judgment both irrational and illogical, to borrow but two of the epithets collected by Mumery J in Stewart -v- Cleveland Guest (Engineering) Ltd (1994) IRLR 440, 443.
36. In arriving at that conclusion we are not persuaded by Ms Omambala's submission that the Employment Tribunal has, in other sections of their reasons, rejected and criticised evidence given by the Respondent's witnesses on other issues, particularly the Councillors' reasons for preferring DW to the Applicant for the vacant post. We accept that the Employment Tribunal so found; they considered the Respondents explanation in that respect "entirely unsatisfactory" but the Employment Tribunal themselves have not purported to reject those same witnesses' evidence as to knowledge on the footing, that in other respects they were unsatisfactory witnesses. What was required was a reasoned finding that the Councillor members of the panel had the necessary knowledge on 2 April 1997. No such finding has been made.
37. Ms Omambala submits that the real complaint by Hillingdon in this appeal is that the Employment Tribunal has not given adequate reasons for its conclusions. See Meek -v- City of Birmingham District Council (1987) IRLR 250, 251, per Bingham LJ. The proper course, if we accede to that submission, is to remit the case to a fresh Employment Tribunal for rehearing.
38. The lack of reasons is part of the complaint, but it goes further. The Appellants submit, and we accept, that the Employment Tribunal was not entitled to draw an inference of victimisation in the absence of any findings of primary fact to support it (see Chapman -v- Simon).
39. In these circumstances we shall allow the appeal and substitute a declaration that the Applicant's complaint of victimisation fails and is dismissed.

Permission to Appeal

40. Having announced our decision, without at that stage giving full reasons yesterday, Ms Omambala applied for permission to appeal to the Court of Appeal. For the reasons now given we shall dismiss that application on the grounds that the proposed appeal has no real prospect of success and the principles of law, to which we have referred, are well-settled.