United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J GALBRAITH-MARTEN (of Counsel) Instructed by: Winch & Winch Solicitors 5 New Road Avenue Chatham Kent ME4 6AR
For the Respondent	MR R GREENING (of Counsel) Instructed by: The Solicitor for Impact House 2 Edridge Road Croydon CR9 1PJ


 


SIR CHRISTOPHER BELLAMY QC:

1. In this case the Appellant, Mr Sohan Saroy, appeals against the decision of the Employment Tribunal sitting at Ashford on 28 to 30 May 1996, the extended reasons for which were sent to the parties on 19 June 1996. By that decision the Tribunal held that Mr Saroy had not been unlawfully discriminated against on the ground of race by his employer, The Post Office, who are the Respondents.
2. As appears from the decision, notably at paragraph 3, Mr Saroy's case was that, in order to get promotion in the delivery section of the Respondents, he needed to get experience of "acting duties", but the Respondents adopted a discriminatory policy in allocating "acting duties" which effectively deprived him of the possibility of gaining the experience he needed. He contended that such discrimination was on grounds of race. At paragraph 4 the Tribunal said:

"This case is even more unusual in that the Applicant's claim is that he was denied the opportunity to carry out acting duties because he was an Indian, but Mr Panford, on behalf of the Applicant, has made it plain throughout the course of these proceedings that no allegations of unlawful discrimination whatsoever are made against any of the Respondent's witnesses, or indeed against any of the Respondent's employees. Furthermore, the Applicant makes no complaint about the conduct of the grievance which he raised, he does not complain about the appeal hearing conducted by Mr Walker, nor does he make any complaint of discrimination in connection with his failure to pass the two promotion boards."

3. At paragraph 5 of its decision the Tribunal found the following facts:

"(1) The Applicant is 41 years of age and was born in India. He came to the United Kingdom in 1979. The Applicant commenced employment with the Post Office on 22 June 1987 as a postman, working from Chatham.

(2) In early June 1988, the Applicant applied for, and was appointed to, become a Postman Higher Grade (PHG) and was then transferred to Maidstone.

(3) In March 1992, the Applicant applied for a transfer to the Quality Diagnostics Deliveries Section, which has since become known as Quality Assurance. Four people applied for the post and the Applicant was the only one from an ethnic minority. The Applicant was appointed to the position with effect from 30 March 1992. The Quality Assurance Section was responsible for monitoring the standard of the delivery service within the business. The Manager of the section, and the Applicant's immediate superior, was Mr Bill Irons.

(4) It is open to any employee of the Respondent, at any time, to apply for a transfer from one section to another, and it was as a result of the Applicant's own application for transfer that he was appointed to the Quality Assurance Section.

(5) Insofar as the Applicant is concerned, the Respondent's promotional ladder started with the grade of Postman and then there was promotion to Postman Higher Grade, which was in fact the grade of the Applicant. The junior Managers were graded on job value, the lowest grade being JV5, and ascending JV1. Thereafter, they were senior Managers.

(6) It was the Applicant's ambition to obtain promotion to managerial level and the promotion in his case would be from PHG to JV5. In order to obtain promotion, it was desirable, but not essential, for the employee to have acted on a temporary basis as a junior Manager.

(7) The Respondent operated a system of "acting up" and "temporary promotion". It is necessary to consider these in more detail.

Temporary Promotion:

Temporary promotion was the promotion of an employee, on a temporary basis to fill a vacant managerial position. A temporary promotion was relatively long-term and was used to fill, for example, a position where a Manager had resigned or retired and the post required to be filled until a permanent replacement was found. An employee holding temporary promotion secured various benefits for himself in relation to his terms and conditions of employment and an employee on temporary promotion was better off than an employee carrying out acting duties.

Acting Duties:

Each office of the Respondent has one or more Managers and it is a requirement that a Manager be on duty at all relevant times. If a Manager is absent for a short period, such as being sick or on holiday or on a course, then a replacement for him must be found. The replacement is found from the "acting list". The acting list is a list of employees who are considered suitable for performing acting duties. In order to be placed on the acting list, each employee has to attend a two-week training course and pass the course which is known as "First Team". Having passed the First Team course, employees are then placed on the acting list. At all relevant times, the Applicant was on the acting list.

(8) In relation to deliveries, it was the practice of each Delivery Area Manager to hold a meeting every Monday morning with his Cluster Delivery Office Managers and one of the matters to be discussed would be the current requirements of the business for acting Managers. They would consider which substantive Manager was away and for how long and who, on the acting list, should replace him. All those on the acting list were considered equally suitable for appointment and it did not matter how long a person had been on the acting list, nor whether he was a postman or a PHG.

(9) At the relevant time Mr Pender was the Delivery Area Manager and it was his sole decision after consultation with his Delivery Office Managers as to who should be appointed to acting duties. He selected names from the acting list according to the availability of those on the list, their experience and capability to do the particular job and the location of the job. Selection was made having in mind the needs of the business to function properly, and the acting list was not itself any form of training tool. It was, however, accepted that those employees who did carry out acting duties did gain useful experience in those areas in which the duties were performed.

(10) In 1993, the Applicant was promoted to a temporary position, JV5, when he was delegated to work on a delivery revision team. He was engaged during that year for 85 days. Pages 48 to 80 of R1 show the records of various employees, including the Applicant, and when they carried out periods of temporary promotion or acting duties. Pages 74 and 75 relate to the Applicant and show that he did carry out acting duties within the delivery function for the 85 days in 1993. He did so again between 16 and 20 May 1994, and for some six weeks from 5 September 1994. He further carried out a managerial position between 7 and 12 November 1994. On occasions, the Applicant had carried out acting duties when his superior, Mr Irons, was on annual leave, and in December 1994 the Applicant was then temporarily promoted to JV5 to undertake the duties of Mr Irons on Mr Iron's retirement.

(11) During the course of his appeal, Mr Walker carried out an intensive investigation into the duties undertaken by the Applicant, and the results are shown at R83 thus:

"From May 1993 to the end of 1993, he was temporarily promoted for 85 working days, in 1994 he was either acting or promoted for 92 out of a possible 195 days and in 1995 he was either acting or promoted for 133 out of a possible 140 days."

(12) On 3 June 1994, the Applicant wrote to his superior, Mr Irons, asking if it would be possible for Mr Irons to find a replacement for the Applicant whilst the Applicant did acting duties as a line manager. The Quality Assurance Section was a specialist unit and the Applicant was regarded as a specialist in that field. The Respondent found it difficult to provide cover for the Applicant because of the specialist knowledge required. The Respondent regarded it as important that the Applicant should be in post when Mr Irons was not.

(13) The Applicant wrote to Mr Irons on 18 October 1994 asking for acting duties because he wanted to gain experience which would assist him on applications for promotion. Mr Irons passed on the request to Mr Pender, and at the end of 1994 Mr Dixon then offered a new acting duty to the Applicant. This duty was on delivery audit patrol and was within the delivery function which is where the Applicant was anxious to gain experience. The acting duty would have given the Applicant considerable experience in the delivery field. The Applicant thought about the offer for a short while and then declined to take it up.

(14) The Applicant again raised the question of acting duties in February 1995. It was then pointed out that his name was on the acting list which contained some 24 names and that it would be useful if the Applicant could let Mr Pender's assistant know his availability.

(15) The Applicant's request for acting duties were passed on to the Manager of the Quality Diagnostics Section by memo dated 15 March 1995 stating:

"I received from Mr S Saroy the attached correspondence, requesting some acting within the Delivery Offices. Where as this is possible, I do need to know his availability for acting, either dates when he can be released or dates when he cannot be touched. The Delivery Acting list currently has twenty-four names and therefore any acting is sparse, but Sohan will be offered acting when your section and Deliveries needs coincide."

(16) On 17 March 1995 the Applicant registered a formal complaint by way of letter dated 17 March to Mr Pender (R14/15). He pointed out that he had twice failed to convince the promotions board that he had the ability to become a Manager because it was said that he lacked operational knowledge. The Applicant has made no complaint of racial discrimination in relation to his failure to obtain promotion.

(17) On 20 April 1995, Mr Pender replied to the Applicant's complaint (R25-27). Mr Pender rejected the Applicant's complaints stating, inter alia:

"Having looked at all the papers, I think the issue here is one of personal choice rather than discrimination as you would obviously prefer to work within the Delivery Team believing that there is more opportunity but are not prepared to accept that there is far more competition for the limited amount of posts in this area and that the selection process has identified better candidates for the jobs irrespective of their creed. This I believe is borne out by our support for your appointment to temporary Quality Manager Maidstone upon the retirement of Mr Irons, as you are our local expert and number one candidate for the post."

(18) The Applicant appealed against Mr Pender's decision. An appeal hearing was held on 6 June 1995 (R31-34) and the conclusions of Mr Walker, who heard the appeal, are shown at R81-84. The appeal was rejected (R86).

(19) With effect from 3 April 1995, Mr Dennis Murphy took over from Mr Pender as the Delivery Area Manager for Maidstone and Medway area.

(20) Between April 1995 and November 1995, the method of allocating acting duties was carried out by Mr Dixon in accordance with the system which had been in operation by Mr Pender. Mr Murphy asked Mr Dixon to review the list and the procedure for allocating acting duties because during the summer of 1995 there had been a problem in covering various absences and it had become apparent that the same people were being used on acting duties on a fairly regular basis. Review notices were published and all employees were asked to apply to be put on the acting list if they wished to do so, and those on the acting list were asked to specify their preferences. The Applicant did apply and was put on the Maidstone list.

(21) The Respondent does have an equal opportunities policy, which is shown at R151."

4. There is no material challenge to the facts as found by the Tribunal.
5. The Tribunal went on to find (at paragraph 10) that acting duties did provide useful experience at a higher managerial level which was desirable in order to obtain promotion, and that access to such acting duties thus constituted "access to opportunities to promotion" within the meaning of section 4(2)(b) of the Race Relations Act 1976 ("the 1976 Act"). That finding is not challenged on this appeal.
6. The question then for the Tribunal was whether Mr Saroy had established an infringement of the 1976 Act. On that issue the Tribunal continued, at paragraphs 11 to 16:

"11 The question then is whether or not the Applicant was denied the opportunity to carry out acting duties. The evidence has shown that the Applicant did carry out a lot of work on temporary promotion and did also carry out a reasonable amount of acting duties. Furthermore, following his requests, the Applicant was offered acting duties on the audit patrol work, but this he declined. The Applicant enjoyed more temporary promotion than many employees. He did not, however, have as many acting duties as some of the employees on the acting list at the relevant time. The evidence was, however, that only a few people on the acting list carried out acting duties regularly and that there were others on the acting list who were not Indian and who also failed to have a lot of acting duties.

12 The reasons why the Applicant did not obtain a lot of acting duties were because he was himself temporarily promoted to JV5 and undertaking managerial responsibilities in the Quality Assurance Section. As such, he could not be spared unless a suitably qualified person could be found to take his place. Also, there were certain acting duties which had to be filled at short notice and required certain expertise. In some of these areas, the Applicant did not have the required expertise.

13 The Applicant complains that he was not given sufficient acting duties and at the relevant times the sole responsibility for the allocations of those duties rested with Mr Pender and with Mr Murphy. The Applicant has not made any claims for racial discrimination against these gentlemen, or indeed against any other person, and indeed Mr Panford went to great pains to point out specifically that none of the witnesses in this case were being accused of acting in any way in a racially discriminatory manner.

14 The Applicant's case rests therefore on the allegation that the acting list was operated in a discriminatory way. There is no doubt that this is true because some persons on the acting list received more acting duties than others. However, there is not one shred of evidence before us to suggest that the reasons for any discrimination were racially motivated, nor is it possible in any way to draw any inference of any racial discrimination. It is difficult, if not impossible, to see how the acting list could be operated in a racially discriminatory way, when there are no allegations made against those people who operated the list and allocated the acting duties.

15 We do not find that there has been any breach of the Respondent's equal opportunities policy.

16 This application is singularly devoid of any merit whatsoever. The Applicant has not suffered any unlawful discrimination on the grounds of his race and this application is dismissed."

7. Mr Saroy appealed by a notice of appeal dated 24 July 1996, which did not specifically identify any point of law. It was not until shortly before the ex parte preliminary hearing of this matter, on 20 November 1998, that the Appellant sought permission to serve an amended notice of appeal. On that occasion this Tribunal (HH Judge Pugsley, Mrs T A Marsland and Mr P A L Parker) gave permission for the notice of appeal to be amended. At that hearing there was also a direction that the parties attempt to agree the evidence before the Tribunal on the question of what comparisons were to be made as to the operation of the acting list, but it was not until September 2000, after intervention by the Registry, that an agreed bundle was submitted containing the agreed evidence in question and other documents. It seems to us from the correspondence between the parties and the Registry in 1999 and 2000 that the Appellant, whose responsibility it is to prosecute the appeal, must bear a substantial measure of responsibility for the delay that has occurred in these appeal proceedings, and the consequent lapse of time since the events with which we are concerned.
8. We also understand that in 1999 the Appellant in fact obtained the promotion which he had been seeking, but he contends that there is still a live issue on this appeal, namely the financial consequences that would ensue if that promotion had been delayed because of unlawful discrimination on grounds of race.
9. On the substance of the case, the Appellant advances three main arguments.
10. The first argument in the Appellant's skeleton argument is that the Tribunal misunderstood the Appellant's case. It was not his case that there were "no allegations of unlawful discrimination whatsoever" being advanced, as the Tribunal stated at paragraph 4 (see also paragraphs 13 and 14). On the contrary, the Appellant's case was that the way the system of allocating acting duties was operated by the Respondents' employees had a racially discriminatory effect.
11. The Applicant refers to the further and better particulars of his application dated 1^st July 1996, where he contended (notably at p 55w) that he had been discriminated against upon racial grounds in that he had been treated in a way which has denied him access to opportunities for promotion and/or training, particularly as regards acting duties. The Appellant further contends that the decision about who was to be given acting duties was made by Mr Pender and his successor after consultation with Delivery Office Managers, and that it was these Managers, who he identifies in his further and better particulars as Messrs Cope, Cooper, Goldsmith and Irons, who had treated him less favourably than they had treated white colleagues.
12. The Appellant also relies on a note from Mr Panford (now QC), who represented him before the Tribunal, which is annexed to an affidavit sworn by the Appellant's solicitor. In that note Mr Panford says that he is concerned about the Tribunal's description of the Appellant's case. While Mr Panford did not suggest that the Respondents' witnesses were personally motivated by racial discrimination, he did suggest that the acting list was compiled and operated in a way that had a racially discriminatory effect. He invited the Tribunal to infer racial discrimination from the absence of any plausible or sustainable explanation of Mr Saroy's less favourable treatment.
13. The Appellant's second main argument, which was the main focus of the appeal, is that the Tribunal erred in law in taking into account the absence of racial motivation on the part of the employees concerned. In particular, the Tribunal erred, in paragraphs 4, 13 and 14, in taking into account the fact that no allegations of racial discrimination were made personally against those operating the list of those eligible for acting duties, and notably in thinking that it was "difficult if not impossible" to find racial discrimination in the absence of such allegations (see paragraph 14, last sentence). The Appellant did not have to show conscious racial motivation, nor that racial grounds were the sole cause (see Nagarajan v London Freight Transport [1999] IRLR 572), nor identify any individual perpetrator (London Borough of Hackney v Tiyamiu, CA, 20 February 1998). In this case, for example, the Tribunal failed to recognise and appreciate that Mr Pender or his successor could have been unconsciously abetting any unlawful discrimination if they were acting on the basis of misinformation supplied to them by the Delivery Office Managers.
14. The Appellant's third main argument, which is closely related to the second, is that the Tribunal erred in law in failing to follow the approach set out in King v Great Britain-China Centre [1992] ICR 516, as approved in Glasgow City Council v Zafar [1998] ICR 120. Since the Appellant was the only non-white individual, given his seniority and experience, to be denied access to acting duties, his position should have been compared not with everyone on the list of those eligible for acting duties, but with those who were regularly given such duties. Moreover, the Tribunal failed to consider the explanation put forward by the Respondents for that discriminatory treatment, and whether it was satisfactory or adequate. None of the explanations offered by the Respondents were sufficiently convincing to eliminate a racial cause. In any event, the Tribunal effectively prevented itself from applying the correct test by erroneously considering that some conscious racial motive had to be shown.
15. The Respondents, for their part, deny that the Tribunal had misunderstood the Appellant's case, and refer to the contents of the decision itself and the Chairman's comments on Mr Panford's note which are dated 2 December 1998. In those comments the Chairman states that although the witnesses were not personally being accused of racial discrimination, it was the Appellant's case that the way the processes themselves operated had a discriminatory effect, and that the Respondents had not offered an explanation for the less favourable treatment suffered by the Appellant. The Respondents further submit that, in any event, the Tribunal correctly considered whether the Appellant had been less favourably treated by others, of a different race, in the respect complained of, what the reasons were, and whether they were on grounds of race. Since the Appellant had disavowed any racist motive or purpose, he had to show that the managers who selected for acting duties had unwittingly discriminated on grounds of race. The reasons given by the Tribunal fully and adequately refute any such argument. Moreover, the Appellant cannot succeed in the light of the Tribunal's findings of fact, particularly at paragraphs 5(3), (4), (7), (9), (10), (11), (12) and (13), and at paragraphs 11 and 12. As regards the last sentence of paragraph 14, the decision as a whole shows the Tribunal had approached the evidence correctly, given the express disavowal by the Applicant of any suggestion of a conscious racial motive. The Respondents further seek costs on the basis that the Appellant has acted unreasonably in bringing his appeal.
16. As regards the Appellant's first argument, we are satisfied that the Tribunal did not misunderstand the Appellant's case.
17. The Appellant relies on three passages in the decision: (i) paragraph 4, where the Tribunal states that "no allegations of unlawful discrimination whatsoever are made against any of the Respondents' witnesses, or indeed against any of the Respondents' employees"; (ii) paragraph 13, where the Tribunal says: "The Applicant has not made any claims for racial discrimination against these gentlemen, or indeed against any other person, and indeed Mr Panford went to great pains to point out specifically that none of the witnesses in this case were being accused of acting in any way in a racially discriminatory manner;" and (iii) paragraph 14, last sentence, where the Tribunal states "It is difficult, if not impossible, to see how the acting list could be operated in a racially discriminatory way, when there are no allegations made against the people who operated the list and allocated the acting duties".
18. It is clear to us from the decision, as well as from Mr Panford's Note and the Chairman's comments, that in those passages the Tribunal is referring to the fact that the Appellant did not allege that the relevant employees of the Respondent were themselves personally motivated by racial considerations. The Tribunal is not suggesting in those passages that no allegation "whatsoever" of racial discrimination was being made, which would be absurd.
19. As Mr Panford points out in his Note, and the Chairman confirms in his comments, the Appellant's case was that there was no direct evidence of racial discrimination but that such discrimination was to be inferred in the absence of any plausible or sustainable explanation for the less favourable treatment accrued to the Appellant. Moreover, it is clear from both Mr Panford's note, and the Chairman's comments, that Mr Panford expressly told a number of the Respondent's witnesses that they were not personally being accused of being racist, the Appellant's case being rather that the Respondent's processes had a racially discriminatory effect. It was clearly in that context that, at paragraphs 4, 13 and 14, last sentence, the Tribunal referred to the fact that no allegation of racial discrimination was being made against the Respondent's witnesses or employees.
20. The conclusion that the Tribunal did not misunderstand the Appellant's case is further confirmed by paragraph 8 of the decision, which the Appellant has not seriously challenged. There it is stated that Mr Panford "agreed there was no specific evidence of unlawful discrimination, but that it was the way in which the acting list was operated which caused the discrimination". A little later on the Tribunal states "the third reason [advanced by Mr Panford] was that the Respondents had adopted a policy in allocating acting duties which had a discriminatory effect. Mr Panford pointed to the equal opportunities policy and submitted that the Respondent had not complied with this because they had not rooted out unlawful discrimination". Mr Panford's Note closely corresponds to that description by the Tribunal of his case. Paragraph 9 of the Chairman's comments, which sets out the case made by Mr Panford in his closing address, is to the same effect. Moreover, the opening sentence of paragraph 14 of the decision, where the Tribunal says "The Applicant's case rests therefore on the allegation that the acting list was operated in a discriminatory way", also shows that the Tribunal had fully understood the case that was being put.
21. In so far as it was further contended before us that it was the Appellant's case before the Tribunal that certain of the Respondents' employees, namely the Delivery Office Managers (whom Mr Pender or his successor consulted before allocating acting duties) were acting deliberately on racial grounds, Mr Panford's Note does not suggest that that contention was advanced at the hearing before the Tribunal, and there is nothing in the Chairman's comments to support the suggestion either. Both the decision itself and the Chairman's comments support the view that no allegations of a racial motive were in fact made against any employee of the Respondents.
22. We therefore approach this appeal on the basis that no allegation of a personal racial motive was made by counsel for Mr Saroy against any of the Respondents' witnesses or employees, which is what in our view the Tribunal is saying in paragraphs 4, 13 and 14, last sentence, of the decision.
23. That takes us on to the Appellant's second and third arguments which are, essentially, (i) that in paragraphs 4, 13 and 14 the Tribunal wrongly took into account, or gave undue weight to, the fact that no allegations of a personal racial motive were being made against any of the Respondents' employees; and (ii) that the Tribunal failed to approach its task according to the guidance given in King v Great Britain-China Centre and Zafar v Glasgow City Council. It is convenient to deal with these two arguments together, beginning with the relevant law.
24. The relevant sections of the 1976 Act provide:

"1 (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;

...

4 (2) It is unlawful for a person, in the case of a person employed by him at any establishment in Great Britain, to discriminate against that employee

...

(b) in the way he affords him access to opportunities for promotion.

25. In Zafar, cited above, Lord Browne-Wilkinson indicated (at p.123H) that although section 1(1) of the 1976 Act requires an answer to be given to a single question (viz has the complainant been treated less favourably than others on racial grounds?) it may be convenient to split that question into two parts (a) less favourable treatment and (b) racial grounds. As far as "less favourable treatment" is concerned, it is necessary to determine whether the Appellant in question has been treated less favourably than another person of a different racial group with similar experience and qualifications (see Mummery LJ in Marks & Spencer Plc v Martins [1998] ICR 1005 at p. 1019C). As far as "on racial grounds" is concerned, Lord Browne-Wilkinson in Zafar approved (at pp. 125 to 126) the well-known guidelines laid down by Neill LJ in King [1991] ICR at 528 to 529, which are as follows:

"(1) It is for the Applicant who complains of racial discrimination to make out his or her case. Thus if the Applicant does not prove the case on the balance of probabilities he or she will fail.

(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption [that] 'he or she would not have fitted in'.

(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.

(4) Though there will be some cases where, for example, the non-selection of the Applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone, 'almost common sense'.

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

26. On the question of how far a racial motive is relevant in cases falling under section 1(1)(a) of the 1976 Act, in Nagarajan, cited above, Lord Nicholls (with whom three other members of the appellate committee agreed) said at paragraphs 13 and 14:

"Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.

The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination under s.1(1)(a), as distinct from indirect discrimination under s.1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the Applicant would not fit in, or that other employees might make the Applicant's life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination under s.1(1)(a) is established."

He added at paragraph 17:

"I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an Applicant had nothing to do with the Applicant's race. After careful and thorough investigation of a claim members of an Employment Tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the Tribunal must first make findings of primary fact from which the inference may properly be drawn. Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of s.1(1)(a). The employer treated the complainant less favourably on racial grounds. Such conduct also falls within the purpose of the legislation. Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination. Balcombe LJ adverted to an instance of this in West Midlands Passenger Transport Executive v Singh [1998] IRLR 186, 188. He said that a high rate of failure to achieve promotion by members of a particular racial group may indicate that 'the real reason for refusal is a conscious or unconscious racial attitude which involves stereotyped assumptions' about members of the group."

27. Finally, in London Borough of Hackney v Tiyaniyu, CA, 20 February 1998, Mummery LJ said, at p 14:

"the law does not require a complaint in a case of victimisation or discrimination to be able to identify, in the case of a corporate Respondent, the actual individual perpetrator or perpetrators of alleged acts of discrimination or victimisation."

28. Applying the authorities cited above to the circumstances of the present case, we observe, first, that the Tribunal found that the Appellant "did not have as many acting duties as some of the employees on the acting list at the relevant time" (see paragraph 11). The Tribunal further found that "the acting list was operated in a discriminatory way because some persons on the acting list received more acting duties than others" (paragraph 14). Since it was common ground that the Appellant was Indian, and that the persons who received more acting duties were not Indian, the Tribunal's decision does show that the Appellant had established "less favourable treatment" within the meaning of section 1(1)(a) of the Act, in that he received fewer acting duties than others on the list, albeit that he also enjoyed more temporary promotion than many other employees, as the Tribunal also found at paragraph 11. There are thus no grounds for criticising the Tribunal's approach to the first part of the question to be answered under section 1(1)(a) of the Act.
29. The Tribunal then had to go on to consider whether such less favourable treatment was "on racial grounds". In that connection, since it was conceded that there was no direct evidence of discrimination on racial grounds, it was incumbent on the Tribunal, in accordance with the guidelines in King, to decide what inferences it was appropriate for them to draw from the primary facts. In particular, since there was, in effect, a finding of unfavourable treatment, and there was a difference of race, it was appropriate for the Tribunal to consider whether the Respondents had put forward an explanation, whether that explanation was adequate or satisfactory, and what inferences it was appropriate to draw from all the circumstances.
30. As regards the Respondent's treatment of Mr Saroy, the Tribunal found as follows. (a) It was on his own application for transfer that he was appointed to the Quality Assurance section, although it was later in the Delivery section that he wished to do acting duties: paragraphs 5(3) and (4). (b) Mr Saroy carried out a lot of work on temporary promotion, and indeed enjoyed more temporary promotion than many employees: paragraphs 5(10), 5(11) and 11. (c) An employee on temporary promotion was better off than an employee on acting duties: paragraph 5(7). (d) Mr Saroy carried out a reasonable amount of acting duties, although not as many as some others on the list: paragraphs 5(11) and 11. (e) He was offered but refused further acting duties within the delivery function at the end of 1994: paragraphs 5(13) and 11.
31. As regards the reason why Mr Saroy received fewer acting duties than some others the Tribunal found at paragraph 12:

"The reasons why the Applicant did not obtain a lot of acting duties were because he was himself temporarily promoted to JV5 and undertaking managerial responsibilities in the Quality Assurance Section. As such, he could not be spared unless a suitably qualified person could be found to take his place. Also, there were certain acting duties which had to be filled at short notice and required certain expertise. In some of these areas, the Applicant did not have the required expertise."

32. That finding that Mr Saroy could not be spared from the Quality Assurance section is supported by the evidence set out in paragraph 5(12), which is to the effect that the Quality Assurance section, where Mr Saroy had managerial responsibilities, was a specialist unit, and Mr Saroy was regarded as a specialist in his field. Because of his specialist knowledge it was difficult to provide cover for Mr Saroy while he did acting duties in the Delivery section. As regards the finding that certain acting duties required expertise which Mr Saroy lacked, the Tribunal found at paragraph 5(9) that Mr Pender, who had sole responsibility for allocating acting duties, made his selection "according to the availability of those on the list, their expertise and capability to do the particular job and the location of the job. Selection was made bearing in mind the need of the business to function properly, and the acting list was not in itself any form of training tool". The Tribunal also cites, at paragraph 5(17), Mr Pender's letter to Mr Saroy of 20 April 1995, which points out that the opportunities for acting duties in the Delivery section were limited and that "the selection process has identified better candidates for the job irrespective of their creed".
33. In our view it is clear from the above that the Tribunal did, in effect, follow the guidance in King. Paragraph 12 shows that they considered the explanations put forward to the Respondents in the light of all the factual circumstances, and, indeed, accepted those explanations. Accordingly, they declined to draw any inference of racial discrimination. Thus far no criticism can be made of the Tribunal's approach, and it is not suggested that the Tribunal's findings of fact in paragraph 12 were perverse.
34. We turn therefore to the Appellant's criticism of paragraphs 4, 13 and 14, where the Tribunal refers to the fact that it was not suggested that the Respondents' witnesses were personally racially prejudiced, and in particular to the Tribunal's observations at paragraph 14, last sentence that "It is difficult, if not impossible, to see how the acting list could be operated in a racially discriminatory way, when there are no allegations made against those people who operated the list and allocated the acting duties."
35. It is clear from the authorities already cited that Mr Saroy did not have to demonstrate any conscious racial motivation, either in the sense of racial prejudice, or in the more "benign" sense referred to by Lord Nicholls at paragraph 14 of Nagarajan's case. We further accept that it is open to an Employment Tribunal to infer from all the evidence a subconscious racial motivation on the part of the employees concerned, that is to say that, whether the employer realised it or not, race was the reason that he acted as he did, as Lord Nicholls says at paragraph 17 of Nagarajan. However, as Lord Nicholls also said in the same passage "it goes without saying that in order to justify such an inference the Tribunal must first make findings of primary fact from which the inference may properly be drawn".
36. However, we do not accept that in this case the Tribunal fell into error, either in paragraph 14 or elsewhere in the decision, as regards the relevance of the fact that no allegations of a personal racial motive were made by the Appellant against the employees concerned.
37. In our view the observations of the Tribunal criticised by the Appellant have to be seen in their context. The essential reasoning of the Tribunal on the question of discrimination "on racial grounds" is contained in paragraphs 11 to 14 cited above. Before paragraphs 13 and 14 of the decision are reached, the Tribunal has already accepted, at paragraph 12, the Respondents' explanation for the difference of treatment of which the Appellant complained. That explanation is a non-racial explanation, which is found as a fact at paragraph 12. By the end of paragraph 12, therefore, it is already difficult to see on what basis the Appellant's case could succeed.
38. What the Tribunal then does in paragraph 13 is, as it were, to complete the picture by identifying the persons who had sole responsibility for the allocation of acting duties and to reiterate that no claims of racial discrimination were made "against these gentlemen, or indeed against any other person" and that none of the witnesses were being accused of acting "in any way" in a racially discriminatory manner. We do not read those passages as saying that a finding of a conscious racial motivation is a necessary ingredient to a finding of racial discrimination under the 1976 Act. In our view the Tribunal is merely recording, as it is fully entitled to do, that no such allegation was being made in this case. Indeed, it appears from paragraph 13, in particular, that not even a subconscious racial motive was being suggested by the Appellant. Certainly there is no finding of primary fact in the decision which would support a finding of subconscious racial motivation.
39. In all these circumstances it is not surprising that, by the time they came to paragraph 14, the Tribunal was somewhat at a loss to see how the Appellant's case could be sustained. There the Tribunal both states that "there is not one shred of evidence before us to suggest that the reasons for any discrimination were racially motivated", and that it was not "possible in any way to draw any inference of any racial discrimination". That passage clearly shows that the Tribunal was mindful of, but rejected, the possibility of drawing an inference of racial discrimination notwithstanding that there was no suggestion of conscious motivation.
40. In all these circumstances, we do not think that the last sentence of paragraph 14 can be taken out of context and read as implying that a conscious racial motive on the part of Messrs Pender or Murphy was in law a necessary condition in order to establish the Appellant's case. In our view, that sentence, read in its context, is not a misunderstanding of the law but a comment on the state of the evidence, where the Tribunal is saying that, on the facts of this case, given the explanations offered, it is hard to see on what factual basis racial discrimination could be inferred, given the absence of the slightest reproach against those solely responsible for operating the acting list.
41. It may well be true, as the Appellant submitted, that the fact that Mr Pender and Mr Murphy were not personally racially motivated would be an insufficient answer to an argument that the acting list was operated in a racially discriminatory way, if that were the only, or even the main, consideration taken into account by the Tribunal. However, that is not the case here. The main finding of fact by the Tribunal which deprives the Appellant's case of any substance is the factual finding at paragraph 12, where the Tribunal accepts the Respondent's non-racial explanation for what has occurred. The Tribunal's following observations, particularly at paragraph 14, last sentence, are by their nature strictly subsidiary observations, further explaining why the Tribunal found it difficult to draw any inference of racial discrimination on the facts of this case. Those further observations do not detract from the clear finding in paragraph 12 which, in the absence of any suggestion of perversity, is in our view fatal to the Appellant's case.
42. Nor do we think that paragraph 14, last sentence, read in context, can be taken to mean that the Tribunal thought that, in order to succeed under section 1(1)(a) of the Act, it was necessary to identify specific perpetrators of the racial discrimination alleged, contrary to the guidance of the Court of Appeal in Tiyaniyu. In our view the Tribunal was merely saying that in the particular factual circumstances of this case it found it difficult or impossible to infer racial discrimination in the absence of any allegation against the persons whose decisions gave rise to the discrimination alleged. In our view that is an observation about the particular facts of this case that the Tribunal was entitled to make; it does not imply that, as a matter of law, the Appellant had to identify specific employees, or show that those employees were themselves racially motivated, in order to succeed under section 1(1)(a) of the 1976 Act.
43. Finally, we cannot accept the Appellant's suggestion that in expressing those views the Tribunal disabled itself from considering whether Mr Pender or his successor had unwittingly abetted unlawful discrimination in acting on the basis of "misinformation" supplied to them by the Delivery Office Managers. First, it is not established that any such suggestion was ever made to the Tribunal. Secondly, there is a specific finding of fact that Mr Pender and his successor were solely responsible for allocating duties, to the necessary exclusion of the Delivery Office Managers. Thirdly, there is no finding in the decision that the Delivery Office Managers were, or could have been, supplying Mr Pender or his successor with "misinformation". It has not been suggested to us that the Tribunal's findings of fact are perverse, and there is no evidential basis upon which we could conclude that the Tribunal had acted perversely in failing to take account of this possibility.
44. For these reasons we dismiss the appeal.
45. As regards the issue of costs, we have borne in mind both that this appeal has not been pursued expeditiously and that we have found the Appellant's arguments to be unconvincing. We have however come to the conclusion that this is not a case where we should exercise our discretion to award costs under Rule 34(1) of the Employment Appeal Tribunal Rules 1993.