United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H GREWAL (of Counsel) Instructed By: Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH
For the Respondent	MISS I SIMMER (of Counsel) Instructed By: Borough Solicitor Haringey Council Corporate Services Alexandra House 10 Station Road Wood Green London N22 7TR


 


JUDGE J R REID QC:

1. At the conclusion of the hearing we dismissed the appeal and allowed the cross-appeal. Owing to the lateness of the hour we did not give our reasons at that stage. We now do so.
2. The appeal as it came before us was by Dr Al-Azzawi against a decision of an Employment Tribunal at London (North) in case number 6001211/99 that he had not been racially discriminated against, victimised, or unfairly dismissed. The cross-appeal was by the Council against the decision in case number 2205729/97 that he was racially discriminated against and against the award of £8000 compensation plus interest. Before the Tribunal there was also another case, number 6003039/99, in which Dr Al-Azzawi made further complaints of discrimination and victimisation. It was dismissed and there is no appeal in that case before us. The hearing before the Employment Tribunal lasted nine days in November 1999. A number of the issues which were dealt with in the Employment Tribunal do not feature in this appeal.
3. Dr Al-Azzawi is of Iraqi Arabic origin. His complaints arose out of his employment in Grade PO4 in the Design Partnership Department of the Council where he was employed as a senior architect until his dismissal on 31 March 1999. The Council employs many people of different ethnic origins and in particular the Design Partnership Department had a high proportion of employees of varying ethnic minority origins. He alleged that on 23 September 1997 he was racially discriminated against by Mr Armstrong, a fellow Council employee for whose conduct the Council was vicariously liable, making a remark about "bloody Arabs" in his presence. It was this which led to the award of £8000 against the Council in case number 2205729/97. In case number 6001211/99 he alleged that he had been unfairly selected for redundancy and that the selection amounted to victimisation (as a result of his earlier complaint) and to racial discrimination. He further alleged that he had been racially discriminated against or victimised in that he did not receive a performance pro forma.

The Issues

4. Dr Al-Azzawi claims that he was discriminated against and/or victimised on the grounds of his race because he was not appointed to one of three ring-fenced posts available in the course of a redundancy exercise. He claims that the Employment Tribunal failed to make the findings of primary fact necessary to enable it to draw the inferences which it did. Whether there was an error of law by the Tribunal in failing to make a finding of fact central to the case is the first issue.
5. The second issue is as whether the Tribunal erred in law in failing to make a necessary finding of fact when holding that Dr Al-Azzawi was not treated less favourably than a Ms Keshishi in that she received a performance pro forma while he did not.
6. The third issue is whether the Tribunal erred in law in taking into account events which happened after Mr Armstrong's remark in determining whether the Council had "taken such steps as were reasonably practicable to prevent the employee from doing that act" for the purposes of deciding whether the Council could escape liability for Mr Armstrong's remark.

The facts

7. On 8 September 1997 Dr Al-Azzawi was present at a discussion about the venue for a union quiz evening. The venue was to be different from the venue in the previous year. The discussion appears not to have been taking place during working hours and it is far from clear that it took place in circumstances in which it was correct for the Council to accept that it could be liable for Mr Armstrong's remark. The previous year the quiz evening had been disrupted by a group of people to whom Mr Armstrong referred as "bloody Arabs". This, the Tribunal found, caused Dr Al-Azzawi considerable distress, so a little over a fortnight later he complained on 23 September. Mr Armstrong was suspended from duty on 25 September. On 6 October he was reinstated because the investigation which followed took the view that whilst he might have been guilty of misconduct the facts did not warrant a charge of gross misconduct. At a disciplinary hearing on 9 October misconduct was found proven and Mr Armstrong was given a written warning to remain live for two months from 8 September. He was also required to write an apology to Dr Al-Azzawi, which he did.
8. In the following September it was found necessary to restructure the Haringey Design Partnership Department because of the losses it was incurring. The staff were informed on 11 September 1998 and the new structure was outlined to the staff on 16 October. There had been previous rounds of redundancy which Dr Al-Azzawi had survived. All twelve architects in the department were to be made redundant and it was proposed the redundancy exercise should be by way of "recruitment to stay". Employees were invited to apply for positions within three grades: their existing grade, one above and one below. Dr Al- Azzawi applied, was interviewed and was not appointed. Of the three posts available, the one in the grade above went to Mr Nadaraju, a South African of Indian ethnic origin, who had been Dr Al-Azzawi's line manager. The post at his own level went to Ms Meyer, who is of white European ethnic origin and the post in the grade below went to Mr Ali Kiziltug, of Turkish-Cypriot ethnic origin, a long-time employee of the Council. His performance in interview was worse than that of the other candidates. Although he was praised for his qualities and had a Doctorate of Philosophy his disadvantages were that he was slower than the other candidates and his projects were more costly. In the course of the interview he failed to address the questions asked and failed to focus on the candidate specifications for the particular job in question.
9. Dr Al-Azzawi chose not to apply for a PO3/PO4 post in the Housing and Social Services Department and was invited to apply for a PO6 position in the Building Department, though it emerged that there was no true match between his duties and the duties in the PO6 position.
10. Dr Al-Azzawi did not receive a performance pro forma after his interview. It was not the practice of the Council to issue them, but somehow Ms Keshishi was said to have managed to get hold of hers. Mrs Jan Pettifer, of the Council's Personnel Department, denied she had sent it to her. There was no evidence from Ms Keshishi and no finding by the Tribunal that she had received it.
11. The Council had a policy on racial awareness. This gave examples of racial harassment, including racist comments. The Council also promulgated a document which included a statement that the Council had a responsibility to ensure every employee was aware of and abided by its equal opportunity policy. It went on to point out that appropriate action would be taken against racism ranging from informal disciplinary action to dismissal. The Council provided training courses for its employees on racial and sexual awareness. Mr Armstrong had attended a two day course in November 1996. The Council did not, the Tribunal found, merely pay lip service to the issue of racial equality.

The Law

12. A Tribunal should set out the primary facts from which it draws inferences with clarity: see Chapman v Simon [1994] IRLR 124 at para 43 per Peter Gibson LJ. If the primary facts are not found, the Tribunal cannot draw inferences: Anya v Oxford University [2001] ICR 847 at para 10 per Sedley LJ. It is for the Tribunal to examine the explanations put forward for difference in treatment, and if there is no explanation or it is unsatisfactory, then the Tribunal can (but is not compelled to) draw an inference of discrimination on the grounds of race: see King v Great Britain-China Centre [1992] ICR 516 at 528-9 (CA) and Glasgow City Council v Zafar [1998] ICR 120 at 125-126.
13. Section 1 of the Race Relations Act 1976 provides that "a person discriminates against another … if (a) on racial grounds he treats that other person less favourably than he treats or would treat other persons. By section 2(1) "A person … discriminates against another … if he treats the person victimised less favourably than in those circumstances he would treat other persons, and does so by reason that the person victimised has brought proceedings against the discriminator or any other person under this Act…." By section 4(2)(c) discrimination by an employer by subjecting an employee him "to any other detriment" is outlawed. This would cover both the upsetting of Dr Al-Azzawi by a racist remark and disadvantaging him by not making his interview performance pro forma when such pro formas were made available to employees of other ethnic groups.
14. By section 32(1) of the 1976 Act an act done in the course of employment is to be treated for the purposes of the Act (except as regards offences under it) as done by the employer, whether or not it was done with the employer's knowledge or approval. By section 32(3) it is a defence for the employer to prove he took all steps reasonably practicable to prevent the employee from doing the act complained of or acts of that description. The section is aimed at the prevention of discrimination: see Marks & Spencer v Martins [1998] ICR 1005 at 1022 per Mummery LJ. Subsequent events are therefore relevant only so far as they shed light on what occurred before the act complained of (eg they may demonstrate that an equal opportunities policy which exists on paper is not in fact operated).

Dr Al-Azzawi's Submissions

15. For Dr. Al-Azzawi it was submitted that the Tribunal had not found the primary facts from which it could hold that there was no discrimination against Dr Al-Azzawi in the redundancy process. In particular the Tribunal failed to determine whether the marking of Dr Al-Azzawi in his interview was fair. The Tribunal merely recorded that it was the management's decision that he was not the best candidate. There were matters in the marking which required explanation. This failure was, it was submitted, central to the case.
16. So far as performance pro forma was concerned, the Tribunal merely recorded that Mrs Pettifer said she had not sent the pro forma to Ms Kashishi. There was no finding as to whether or not it was received, and there was evidence which suggested it was.
17. So far as the cross-appeal was concerned, the Tribunal had found that the Council had not done all it could. There was evidence that the equality policies existed only on paper. The background that showed that Dr Al-Azzawi had been subject to racist comments before was important. In 1991 he had complained that a Mr Smith had said to him: "Why don't all you bloody Iraqis speak English properly?" (Mr Smith was disciplined as a result of this complaint with a two year final written warning), that in September 1995 a Mr Corder had called Dr Al-Azzawi a "prat", which Dr Al-Azzawi took to be a racist insult, and that when that remark was being investigated Dr Al-Azzawi mentioned to the investigating officer racist remarks Mr Corder had made to him during the Gulf War and that Mr Armstrong had made a racist remark (unspecified) to him the previous week (no action resulted from this complaint or the other matters mentioned, which were not the subject of the complaint, because the investigator could find no conclusive evidence to support the complaint). The Tribunal had been entitled to hold as it did, in reliance on the earlier history and the subsequent lightness of the penalty imposed on Mr Armstrong for his remark. As to the damages awarded, the amount was in line with other awards. The Tribunal saw Dr Al-Azzawi and could see the effect on him. It is important, it was submitted that awards should relate to the effect on the individual.

The Council's Submissions

18. The Council's submissions were:

(1) The findings of the Tribunal were clear, that there was an appropriate policy in place which was observed. The Council did not just pay lip service to it.

(2) The findings of fact were that the redundancy process had been properly conducted and that there was no discrimination in the process.

(3) Properly read there was a finding of fact that Mrs Pettifer had not sent Ms Keshishi a performance pro forma. There was therefore no finding of fact from which it could be deduced that there had been any difference in treatment between Dr Al-Azzawi and Ms Keshishi

(4) The Tribunal's findings showed that the Council had done all it reasonably could to prevent racial discrimination and that the criticisms of the disciplinary procedure against Mr Armstrong were (a) irrelevant to their finding against the Council and (b) unjustified on the facts.

(5) The award of £8,000 was out of all proportion to the level of discrimination which consisted of a single discriminatory remark not aimed at Dr Al-Azzawi although made in his presence. To attribute all his unhappiness at the time of the hearing to the single remark in circumstances where he was alleging a variety of acts of discrimination and had lost his job in the meantime could not be justified. It was particularly unfortunate that the Tribunal had awarded £8,000 after indicating during the hearing that the maximum it was considering was £5,000.

Conclusions

19. The Tribunal delivered a careful decision. Properly read it contained the necessary findings of fact. Dr Al-Azzawi tried to construe it as if it was a Victorian will or a schedule to an obscure Finance Act. Properly read it was clear from findings that the Tribunal had concluded that the redundancy process was properly conducted, which necessarily included a finding that Dr Al-Azzawi was not discriminated against in the interview. The Council maintained that Dr Al-Azzawi had done himself no favours in the interview by his failure to address the questions put and his failure to address the candidate specifications for the particular job. Clearly the Tribunal accepted this contention. If it had not and the Council had used this as a pretext for not appointing him, the Tribunal could not have found that the procedure was conducted properly. It was not for the Tribunal to adjudicate on the question whether Dr Al-Azzawi's undoubted academic qualifications and length of service made him a better candidate for the post than other candidates, despite his slowness and the expense of his projects. There was nothing missing from the Tribunal's findings. It was entitled to find as it did that he was fairly dismissed and to dismiss his claims of discrimination.
20. So far as his complaint that he was discriminated against by not being sent a performance pro forma by Mrs Pettifer, the Tribunal found that it was not the Council's practice to send out such pro formas, and plainly accepted Mrs Pettifer's evidence that she did not send one to Ms Keshishi. Dr Al-Azzawi's real complaint is that the finding of fact is wrong. On the findings (which were ones the Tribunal was entitled to make) there was no difference in treatment by Mrs Pettifer between Dr Al-Azzawi and Ms Keshishi and the Tribunal's finding of "no discrimination" was inevitable.
21. On the cross-appeal the situation is rather different. The Tribunal seems to have founded its decision that the Council had not taken such steps as were reasonably practicable to prevent Mr Armstrong's discrimination on the disciplinary process and what they perceived as a lenient penalty. Those events taking place after the act of discrimination are irrelevant in this case. The result of the disciplinary proceedings might have been prayed in aid as demonstrating that the Council did not take its racial equality policies seriously and merely paid lip-service to them. It did not. The Tribunal expressly rejected the suggestion that the Council paid only lip service to the policies. Apart from the criticism of the disciplinary process against Mr Armstrong, the evidence accepted by the Tribunal could only lead to the conclusion that the Council had taken all such steps as were reasonable to prevent racial discrimination. It had policies in place; those policies were not just for show; employees were (when breach was provable) disciplined under them; employees were sent on relevant courses and Mr Armstrong had been sent on a course less than a year before the incident. In our judgment the Tribunal misled itself by looking only at the events after the incident. Had it properly directed itself it would inevitably have come to the conclusion that the Council had made out its defence under section 32(3). It follows that the cross-appeal must be allowed and the claim for racial discrimination must be dismissed.
22. In these circumstances we do not have to determine the question of whether the amount of damages awarded was sustainable. This should not be taken as any indication that we approve the award. It seemed to all of us that the award was out of all proportion to the act of discrimination and any consequences which could possibly have flowed from it.