United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W PANTON (of Counsel) Messrs Wadesons Solicitors Southbank House Black Prince Road London SE1 7SJ


 


MR RECORDER UNDERHILL QC:

1. The Appellant, who is of Asian ethnic origin, is employed by the Respondents, the Department of Social Security. This appeal arises out of the decision of an Employment Tribunal sitting in Bury St Edmunds considering a number of different applications which were heard together and dealt with in a separate set of Extended Reasons sent to the parties on 20 July 2000.
2. The procedural history is complicated, but it need not be set out for the purposes of this judgment. The Tribunal was concerned with essentially four complaints, helpfully summarised in the Extended Reasons at paragraph 3, which we will recite:

"(i) that he was discriminated against when the Respondent failed to select him for a Team Leader post in the Employment Service and Benefits Agency to deal with Jobseeker's Allowance (the JSA post) in 1995 and again in March 1996 when he was not appointed to the Benefits Agency Team Leader post (the BA post) for which he applied;

(ii) that he was discriminated against when he was not temporarily promoted in 1998 following assessment by his line manager;

(iii) that he was again discriminated against by his line manager in May 1999 when he was under-marked at his Performance Appraisal Review (PAR); and

(iv) that the Respondent victimised him because he had brought a complaint before the Employment Tribunal."

3. The cases were heard over 12 days in May and June 2000 with a further reading day and a discussion day for the Tribunal. The Extended Reasons are full and clear and evidently constructed with care.
4. The Tribunal dealt with the first category of complaints at paragraphs 8 to 13 of the Extended Reasons. It considered separately the Appellant's non-selection for each of the two posts.
5. As to the JSA post, the Tribunal was highly critical of the selection procedures employed by the Respondents, which it described as woefully inadequate; but it nevertheless held that the Respondents' failure to follow proper procedures did not involve any element of racial discrimination. At paragraph 13 of the Extended Reasons it found, in terms, that:

"We have no hesitation in finding that the Applicant was treated unfairly in his application for the JSA post but he was not so treated because of his race."

That corresponds with their earlier finding, in paragraph 12.6, that:

"In the Respondent's genuinely held view these [management skills] were the skills which were the Applicant's weakest. That is why he was not selected."

Subject to one point, there is no challenge by the Appellant to the Tribunal's reasoning in relation to his non-selection for this post.

6. As to the BA post, it appears that two candidates made formal applications, the Appellant and a Ms Robinson. Ms Robinson is white. Formal written reports were submitted from their manager, in the Appellant's case a Mr Waddingham. After the closing date for applications a Mr Crawford expressed interest in the posts. His manager was on the selection panel. No written report was required in his case. Mr Crawford and Ms Robinson were selected. The Tribunal criticised the fast tracking of Mr Crawford. It also found that the selection panel "took account of extrinsic material when making its decision, taking note of rumours and allegations about the Applicant of which he was totally ignorant": see paragraph 12.9 of the Extended Reasons. The inference is that that extrinsic material derived from Mr Waddingham's report, the original version of which has disappeared. But the Tribunal nevertheless concluded, in paragraph 12.9:

"Was the selection panel in acting as it did, consciously or subconsciously motivated by race? We find as a fact that it was not, as there is not one shred of evidence available to us from which it is possible to draw such an inference."

And in paragraph 14, where it gave its final conclusion in relation to the BA post, it said this:

"We ask ourselves whether there was a difference of treatment? Without doubt, the Applicant as well as Ms Robinson was treated differently from Mr Crawford. Ms Robinson, like Mr Soormally, had been rejected for the JSA post. Ms Robinson and Mr Soormally are of different ethnic origins and yet they were treated alike; both were disadvantaged by the inclusion of Mr Crawford in what was to become the pool for selection of candidates. We conclude that both Ms Robinson and the Applicant were treated less favourably than Mr Crawford but not on the grounds of race for there is no difference in the ethnic origin of Mr Crawford and Ms Robinson, both of whom are white."

7. It should also be noted that, following the non-selection of the Appellant for these posts, he complained under the Respondent's internal equal opportunities procedure and an internal investigation was carried out. The Tribunal was also very critical of aspects of the investigation report and described the investigators' decision as "irrational" and suffering from "the same blundering incompetence as the Respondent has acted throughout": see paragraph 15 of the Extended Reasons.
8. The Appellant makes essentially four points in relation to the Tribunal's decision in relation to the first category of cases identified in paragraph 3.
9. Firstly, Mr Panton, who appeared for him below and appears for him on this preliminary hearing, submits that it was inconsistent for the Tribunal to find the Respondents to have been blunderingly incompetent - and it is clear that he is referring, not simply to the investigation, but to all the criticisms made of the Respondents - and yet not to draw an inference of racial discrimination. We do not believe that this submission raises any arguable point of law. It is clear law that incompetence cannot, by itself, justify an inference of racial discrimination. It is for the Tribunal in every case to consider whether, on the particular facts of the case, such an inference is justified. It is plain to us that the Tribunal fully appreciated that and carried out the necessary factual assessment.
10. Secondly, the Appellant called evidence from a Mr Baker, a white colleague of his who had been – so we are told by Mr Panton – implicated in precisely the same rumours that the Tribunal referred to at paragraph 12.9 of the Reasons but had himself, nevertheless, shortly afterwards been promoted. That is said to constitute a plain difference of treatment between two employees of different race in essentially the same position, since the Appellant had not been promoted because of the self same rumours. In the light of that evidence, said Mr Panton, the Tribunal could not properly conclude, as it did in paragraph 12.9, that there was "not one shred of evidence available to us from which it is possible to draw such an inference". He made it plain that the evidence of Mr Baker, the only other witness called by the Appellant, had been called with precisely such a point in mind. Mr Baker's evidence is nowhere referred to in the Tribunal's Reasons, save in one of the introductory paragraphs where they recite the witnesses from whom they have heard evidence. Mr Panton submits that the Tribunal was obliged at least to deal with Mr Baker's evidence and to consider what inference could properly be drawn from it. In our view this does raise an arguable point of law. It is well recognised that a Tribunal does not have to mention in its Reasons every aspect of the evidence or deal explicitly with every point raised; but we do not feel able, on a preliminary hearing of this sort, without detailed knowledge of what the evidence of Mr Baker consisted of, to say that this was evidence which did not need to be explicitly dealt with by the Tribunal.
11. Thirdly, Mr Panton argues that the Tribunal's reasoning in paragraph 14, which we have set out above, in which it rejects the allegation of discrimination in relation to the BA post, was irrational. It focuses entirely on the fast tracking of Mr Crawford, which potentially disadvantaged Ms Robinson as well as the Appellant; but the crucial disadvantage was in the actual appointments to the post where it was the two white candidates who were appointed, Ms Robinson and Mr Crawford and the Asian candidate, the Appellant, who was not. We regard this point too as arguable.
12. Fourthly, Mr Panton says that the finding at paragraph 12.9 that the selection panel who selected Ms Robinson and Mr Crawford were not consciously or subconsciously motivated by race is not decisive. It is clear that they were influenced by the report from Mr Waddingham, and, Mr Panton submits, the Tribunal's finding does not take into consideration what we understand to have been part of the Appellant's case before the Tribunal, namely that the unfavourable comments apparently contained in Mr Waddingham's lost report were the result of racial prejudice on Mr Waddingham's part. This too we regard as raising an arguable point of law.
13. We propose therefore to allow the appeal to proceed on those three points but not the first with which we have dealt. It goes without saying (but we repeat for the avoidance of doubt) that our decision is only that these are points which cannot be disposed of in the present summary hearing. We express no view as to the ultimate prospect of success.
14. It will be seen that all three of the grounds of appeal which we have allowed to proceed relate only to the first category of complaints and within those only to the non-selection for the BA post. Mr Panton argued that, nevertheless, an appeal should be allowed to proceed against the Tribunal's decision in relation to all four categories under all the conjoined Originating Applications, including in relation to the decision on the Appellant's non-selection for the JSA post. He submitted that if the Tribunal could be shown to have erred in law in the respects indicated its decision in all respects should be treated as unsafe. In our view that is plainly wrong. An appeal can only proceed in respect of identified points and the decision affected by those points.
15. The Chairman's Notes will be needed in relation to the evidence of Mr Baker and the evidence of any other witness relating to Mr Baker's evidence and we accordingly direct that a request be made to the Chairman for those notes. If either party can assist the Tribunal Chairman in what may be an onerous task of identifying any passages in the evidence of witnesses other than Mr Baker which bear on his evidence, it may be sensible for them to write to the Tribunal (with a copy to the other party) to suggest where such evidence may be found.
16. We also believe that it would assist the Employment Appeal Tribunal on the final hearing to have the notes of the evidence of Mr Waddingham, and we make a similar direction in that regard also. We make clear, for the avoidance of doubt, that when we refer to notes if, as we imagine is the case, evidence in chief was given wholly or partly by reference to a Witness Statement that also needs to be produced.
17. We regard this as an appropriate case for Category B and we give a time estimate of three hours.
18. We should add this. The four points of Mr Panton's with which we have dealt with broadly correspond to the points raised in the Notice of Appeal, and it is our view that no amendment is needed to the Notice of Appeal. It is unnecessary formally to strike out ground 1 as long as it is clear that the case is not proceeding on that ground. Insofar as there is any uncertainty as to precisely what is intended to be covered by the remaining grounds 2 to 4, they are to be treated as being allowed to proceed in accordance with this judgment.