United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON.


 


MR RECORDER LANGSTAFF QC:

1. This is a preliminary hearing in an appeal, which Mr Dass seeks to pursue against the London Guildhall University. He summarised the issues as being discrimination on the ground of direct discrimination, victimisation under the Race Relations Act and breach of contract. There was a number of originating applications, which were considered by the London (North) Employment Tribunal, over 4 days in December 1999, the decision in which was promulgated on 16 February 2000. The first originating application alleged that the Respondent employer had unfairly dismissed him, had discriminated on the grounds of race and had victimised him. These allegations were based upon the failure of the employer to renew a short term contract. I interpose to say that Mr Dass had for some years, as far as he knew with success, lectured as a part time lecturer at the London Guildhall University in particular, an ESOL course.
2. A second originating application alleged further discrimination on the grounds of race and further victimisation in relation to the employers' failure to appoint Mr Dass in January 1996 to the position of Part Time Visiting Lecturer for the spring term of that year. Again by way of explanation, what had happened was that until the end of the summer term 1995, Mr Dass had lectured at the university. He was not told that it was becoming the intention of those in management in the university not to reappoint him in October for the new term. Some had concerns about the quality of his performance, which were never raised with Mr Dass. As it happens another lecturer was appointed in his place. The post was re-advertised for January 1996. He applied, and he was not appointed. Hence the first and second originating applications.
3. There were further matters raised before the London North Employment Tribunal; paragraph 5 of the extended reasons refers to an allegation of victimisation. This was because he had refused an offer of compensation made to him in November 1995. At the same time, he alleged there had been discrimination against him by the employer and that secondly, in a questionnaire, that the employer had discriminated against him by failing to respond to his questions. He also alleged that the interview panel, who interviewed him for the job of part time visiting lecturer were biased, in that they gave him an unwarrantedly low marking. He noted, in particular, that the panel was biased because two of them were Sylheti Muslims, whereas he, Mr Dass, was a Hindu and indeed, he told us, from a very different part of Bangladesh.
4. In essence, the Employment Tribunal had to consider a number of matters. They made findings at paragraph 10 of their extended reasons. They found that Mr Dass had worked for the employer for, what I believe is four years but he had never had his rate of pay increased from the rate that it had been at the outset. He was paid less than any lecturer might expect, given the proper pay scales. They found he should have been told that he was not to be re-engaged in October 1995 but was not. They found that complaints were made which were never raised with him, as they should have been. They had material before them, which Mr Dass has referred us to today, which demonstrated that their failure to deal with him appropriately was in breach of the employers' own employment practices and codes but he, he complains, was never put in a position when he might pursue a grievance. They found that it was not until October when he might have expected to be re-engaged that Mr Dass was told that he was not being given a new fixed term contract for the next academic period. He was written to, in consequence to an enquiry he had made in October and in the course of that letter he was lied to.
5. There was an explanation given for that lie. It was that Mr Kirkwood, the author of the letter was seeking to let the applicant down gently. The Tribunal found that there were questions addressed, by Mr Dass to the employer, which were very similar in style and content to those which might have been expected in a formal questionnaire under s.65 of the Race Relations Act 1976, which were not answered by the employer.
6. When the post of part time visiting lecturer for the spring term was considered, it was apparent that 3 candidates were shortlisted but only 2 interviewed; Mr Dass and a Mr Ford. A person specification had been drawn up for the job and Mr Dass complains that the specification was one which Mr Ford on paper did not properly and fully comply with. On paper the Tribunal accept that Mr Ford was less well qualified than Mr Dass was. Yet in the event it was Mr Ford who was appointed rather than Mr Dass. Moreover, it was found by the Employment Tribunal that in the course of the interview Mr Ludi had asked an inappropriate question, one which alleged a failure of Mr Dass with students, a question which could not properly be addressed to others who had not had experience teaching his course. The Tribunal found objection was taken to this immediately by Mr Collier but perhaps, it might be said, that the damage had already been done.
7. Against that background, a number of points arise: Mr Dass has made them to us with very obvious patience and indeed good humour. He has been assisted by Mr Morton under the ELAAS scheme and we are grateful to both of them for the way in which the submissions have been presented. The Notice of Appeal is quite detailed and in this judgment it is sufficient to say it speaks for itself, as to the principal points which were made. Those which were singled out for us arose from the Notice of Appeal and skeleton argument. In particular it was submitted that there was a lack of proper legal approach by the Employment Tribunal, that it omitted primary facts and by doing so came to an odd conclusion.
8. As part of that submission, Mr Dass urged on us that the Employment Tribunal failed to distinguish between discrimination by victimisation on the one hand and by race, ethnicity or colour on the other. He told us that the Employment Tribunal had not taken care to look at and to determine facts and assumptions. He told us that the Employment Tribunal had erred in law; one could not connect the findings it made with a reasonable approach to the treatment that had been given to him. In particular he was critical of the fact that a decision had been made not to engage him, which though endorsed by college management was taken by 3 colleges who were Sylheti Muslims.
9. He urged upon us that what that the Employment Tribunal had failed to recognise in dealing with the facts as they did was that the facts and chronology disclosed a pattern of discrimination. Very often if one takes a fact in isolation it may have what appears to be a credible explanation; facts should not be seen in isolation but a broad view taken of them. Perhaps the best summary of the way in which globally Mr Dass put his case comes from paragraph 25 of the grounds of appeal. There he says:

25. "The documentary evidence regarding the Respondent's change of attitude towards the Appellant from October 1994, breach of contract, dismissal without Notice of Appeal, breach of Staff Code of Practice, arrangement of a two-part restrictive offer for compensation, denial of access to information and employment particulars, denial of employment and training opportunities, false statements both written and oral made by the Respondent, failure to produce substantive evidence, failure to give reasons at the second hearing for unfair treatment reveal a pattern of discrimination and victimisation. Their actions and reasoning fail the Reasonableness Test….."

And he goes on to complain that the legal approach taken in another case against the London Guildhall University and identified in an Employment Tribunal was not taken in his case. May I say it once in respect of that latter point that we looked at that case and consider the principles which it sets out are not new and surprising principles; their application to the facts of that case is, as the application of principles to facts always has to be, particular to that case and cannot properly be used by analogy. None the less, what is said in that case as to principle is a useful reminder of the law.

10. Having set out his submissions, he then referred us to a further skeleton argument, which Mr Morton had prepared for his assistance. There is one particular matter in that skeleton, to which we need to make further reference. Otherwise it focuses upon certain aspects of the complaints which I have summarised in my citation from paragraph 25 of the grounds of appeal (I hope we shall be forgiven for not setting out the complaints in greater detail, here, in the course of a judgment which, to be comprehensible needs to be relatively brief.)
11. What then is the law which, had to be applied by the Employment Tribunal? As always, the starting point is statute. The Race Relations Act 1976 s.1 provides that a person discriminates against another in any circumstances relevant to the act, if (a) on racial grounds, he treats that other less favourably than he treats or would treat other persons. Here, there is ample evidence that Mr Dass' employers treated him shabbily. That is sufficient to show less favourable treatment, or, if you like, discrimination in a general sense. To be racial discrimination under the Act however, it has to be less favourable treatment because of the race of the claimant. The employee here, Mr Dass, has to show on the balance of probabilities not only that the less favourable treatment was undoubtedly afforded him, but was afforded him on the basis of his race.
12. It would have been open, as it is open to any Employment Tribunal, to have concluded by way of inference from the less favourable treatment given to Mr Dass that it had been given to him because of his race. It has been made plain however, in cases at the highest level such as Glasgow City Council v Zafar [1998] ICR 120 that the fact of less favourable treatment does not, even in the absence of explanation, require a finding that it is by reason of race. Indeed, if there is a positive finding as to the reason for such treatment, it may exclude race. It is only if race is at least part of the reason for the less favourable treatment, that discrimination under s.1 is made out. Here, the Employment Tribunal came to the following important conclusions. In paragraph 9, the Tribunal accepted the evidence of Mr Collier. It accepted the evidence of Mr Kirkwood in preference to the evidence of Mr Dass and dealt issue by issue with the evidence of Mr Ludi. Those were the three principal witnesses, together with a Mr Rahman, whose evidence the Tribunal also accepted, finding virtually no dispute between it and Mr Dass. They dealt with it issue by issue.
13. At paragraph 10 (e) the Tribunal preferred the evidence of Mr Ludi on a particular matter of dispute, in which the issue was whether the Appellant had said to him, Mr Ludi that it was a form of discrimination not to have increased his hourly rate of pay. At 10 (p) of the decision the Tribunal accepted that Mr Ludi had not said, in respect of the dismissal or failure to reappoint the employee in October 1995, that this had been because the college wanted to appoint a white native English speaker. In a significant finding at paragraph 20 they held that in appointing Mr Ford and not the Applicant when funding was available that the Respondents' explanation that they were dissatisfied with Mr Dass and wanted to try someone new was to be accepted. But they also found in respect of the appointment of Mr Ford that he was genuinely regarded by the selectors, on interview, as having the higher marks on a properly based interview, where the assessment was against objective criteria.
14. Those conclusions as to who to believe and what the reason in fact was for some at least of the treatment given to Mr Dass are conclusions of fact. An Employment Tribunal is ordinarily entitled to come to conclusions of fact which this Tribunal has no alternative but to accept. The only exception to this is where it can be demonstrated that a finding of fact can be falsified or where, taken as whole, the overall finding can be shown to be perverse, that is wholly impermissible, given the evidence before the Tribunal and accepted by it. Although we consider that Mr Dass has every right to complain of the way in which he was dealt with by the London Guildhall University, we cannot, we think, find evidence which entitles us to disregard the findings of the Tribunal to which we have already referred. There is insufficient, it seems to us to regard their decision as perverse.
15. The second part of Mr Dass' appeal focuses upon the question of victimisation. I said that I would come back to part of the skeleton argument that Mr Morton has helped Mr Dass to put before us. At paragraph 14 of the Employment Tribunal decision, this is said:

"14.In relation to the allegations of victimisation the case of Nagarajan v London Regional Transport [1998] IRLR 73 indicates that we could not make a finding in relation to such allegations unless we are satisfied that there was conscious motivation."

The reference is to the Court of Appeal. The House of Lords reversed the Court of Appeal. The principle that emerges is that discrimination is a state of fact and not a state of mind. The question is: was the less favourable treatment causally related to a protected act being done by the employee in this case? We asked, in the course of argument what, if any, particular aspects of victimisation might have been tainted by what is an error of law. We were concerned that if it appeared to us that there might have been such an error, then we should permit this case to go forward for a full hearing.

16. In particular, we were concerned that an Employment Tribunal would not normally mention a legal principle, unless it was material to its decision. However, after considerable reflection, we have come to the view that the case is mentioned in the context of other cases in paragraph 14 as a recitation of case law, to which the Employment Tribunal had regard. We have looked at each and every allegation of victimisation, to see whether the motivation of the employer was, or might reasonably be said to have been influential in the decision of the Employment Tribunal to reject the allegation that there had been such victimisation. We cannot find any such incidents. It appears to us that although there need not be conscious victimisation, in this case the facts were such that no act which is alleged to be victimisation could be said on the findings of this Employment Tribunal to have been discounted as such an act, on the basis that the employer had no motive to discriminate. We think therefore that although there is an error of law, it is unarguable that this Tribunal decision was on the facts that it found, as it found them to be, plainly and unarguably right. For that reason, this particular ground is not one which we can allow this appeal to go forward upon.
17. The allegations of breach of contract are background to the allegations of discrimination upon the grounds of race and victimisation and are not, as we understand the applications and the way the matter was argued before the Employment Tribunal, free-standing.
18. In summary therefore, we conclude that it is necessary in this case (as in any case in which discrimination on the grounds of race is alleged) to show not only that there is less favourable treatment but that also that that treatment is on the ground of race. The Employment Tribunal concluded that it was not. We cannot say that they were necessarily wrong to do so.
19. There is only one other matter that we should raise in deference to Mr Dass and it is this; that inevitably in a Tribunal hearing which lasts for as long as this did, with as many facts and documents as there were, it is always tempting to scrutinise a decision carefully for any error. The cases warn us that one must not be over rigorous in that exercise. There may be mistakes or misapprehensions, inevitably, particularly in a decision which was given some weeks after argument had finished. What matters is whether those errors are material. We have examined those to which our attention has been drawn, which are said to be material errors and we cannot see that they are. With, as will be apparent from this decision, some sympathy for Mr Dass, we feel we have no alternative, but to say that this appeal raises no arguable point of law and for that reason, it must be dismissed and permission to appeal is refused.