United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS D ROMNEY (of Counsel)
For the Respondent	MS H GREATOREX (of Counsel) Doncaster Borough Council Legal Services PO Box 71 Copley House Waterdale Doncaster DN1 3EV


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Bhadhuri, the Applicant before the Sheffield Employment Tribunal, against that Tribunal's decision dismissing his complaint of direct racial discrimination brought against his employer, the Respondent Council. That decision was promulgated with extended reasons on 5 July 2001 following a 4 day hearing and a further day spent by the Tribunal deliberating in private.

The Issues

2. At paragraph 3 of their reasons the Tribunal formulated the issues arising for determination in the complaint as follows:

(1) Is the alleged failing of the Respondent's line management to support the Applicant's prospective application for progression by recommending the same in the period from 1996 to date to be regarded as a continuing act within the meaning of section 68(7)(b) Race Relations Act 1976?

(2) If so, is such failure an act of unlawful race discrimination?

(3) In any event, are the Respondent's alleged failure to properly carry out an agreed programme of support meetings with the Applicant, so as to further support his prospective application for progression within the period February 2000 to September 2000 an act of unlawful act of (sic) race discrimination.

(4) In any event are the Respondent's failure to appoint the Applicant to an alternative job which he had applied in July 2000 and its failure to shortlist him for a further alternative job for which he had applied in February 2001, further acts of unlawful race discrimination.

In this appeal we are concerned principally with issues (1) and (2).

The Facts

3. The Appellant, who is of Indian racial origin, commenced his employment with the Respondent as an Education Welfare Officer on 1 August 1988. He has remained in that role at all relevant times.
4. The post has developed from that of the old 'truant officer.' Whilst the core function remains ensuring attendance at school by children of compulsory school age, importance is also placed on identifying and attempting to resolve any social, health or family problems which may be causing non-attendance by a child.
5. Promotion within the Education Department is by what is termed progression. The Appellant has not progressed. That lies at the root of his complaint. The question for the Tribunal was why? Was it on grounds of his race?
6. The Appellant first applied unsuccessfully for progression on 5 November 1992. He did so again in September 1993. On 15 October 1993 he was interviewed by a panel of 5 chaired by Mrs Morgan, Deputy Director. The panel unanimously concluded that he had failed to reach the required standard for progression in a number of identified areas.
7. On 10 June 1994 the Appellant made a further request for progression. A panel interview took place on 7 July 1994; this time the chairman was a Mr Brunt. Again he was unsuccessful. The panel was concerned about the accuracy of his case notes and files which he had selected for examination by the panel. There was some concern that he was not up to his present grade let alone a higher one.
8. Thereafter the Appellant commenced Tribunal proceedings against the Respondent complaining of direct discrimination. That complaint was eventually withdrawn. We note that despite that protected act no claim of victimisation is made in this case.
9. At a supervision meeting held on 15 January 1998 the Appellant asked his then supervisor, Mrs McBride, whether she thought he was ready to progress. She said that she did not think that he would be successful due to her concerns about his skills in letter writing, recording and communication and further that in her view he was insufficiently aware of the social work theories and methods underpinning his work as an Educational Welfare Officer. She offered him suitable reading material, which offer he did not then take up.
10. At a supervision meeting with Mrs McBride held on 15 December 1999 the Appellant again raised the issue of his readiness to progress. She repeated her advice that he needed to acquire an understanding of social work theories in order to impress an interview panel examining his files. This time he took up her offer to provide him with the literature.
11. During the year 2000 a series of 6 enhanced supervision sessions dealing with the theory of social work were arranged with the Appellant, the last being on 26 May. A further 6 sessions were then arranged. Before that series could be completed he presented this originating application to the Tribunal on 19 September 2000.

The Tribunal Decision

12. The Tribunal found that he had not suffered less favourable treatment than an appropriate comparator. However, material to this appeal in our view, are the Tribunal's findings expressed at paragraph 8 of their reasons. We should set out that paragraph in full.

"Accordingly we will assume for these purposes the applicant was less favourably treated because of the criticism of his work and the pointing out of shortcomings which were likely to cause any further applications for progression to fail and in respect of the allegations of lack of support. We find that neither of the applicant's supervisors can be regarded as actually preventing the applicant from making applications for progression although we appreciate that realistically the absence of their support would be a considerable impediment to a successful application. In this regard we accept the genuineness of the explanation put forward by the Respondent. We cannot accept the applicant's view that the emphasis on social theory and practice was simply a smoke screen or a hurdle put in his way to prevent his progression. Indeed the applicant's no doubt genuinely held belief that this is the case only serves to underline the view we take that the applicant failed to appreciate what was required of him in his role as an Education Welfare Officer and that despite the length of time during which he had been carrying out that role, we accept that his view that he was doing his job correctly was underlined by the praise which he says he received from school x. Moreover the Applicant did not receive any warnings in respect of his performance in the formal sense although it will be recollected that during supervision sessions his work was closely considered and criticism (we find constructive) was made. We are reminded however that the Respondent's approach is that the profession of Education Welfare Officer is not simply secure in securing school attendance and therefore that keeping the head teachers happy was not necessarily the prime objective of the role where the "client" was the pupil rather than the school. We also take the view that the applicant considered that progression was simply to be achieved by serving the appropriate amount of time. We can see in that light how he considered that the respondent's exhortation in respect of social work to be a delaying tactic. In relation to the applicant's recording skills and use of English we do not consider that Miss Buckley's reference to the Code of Practice is apt in the circumstances of this case. We find that in relation to this job it was extremely important that notes of visits, interviews and plans of action should be recorded accurately. It was necessary for these notes to be read and understood by colleagues who might be covering the applicant's work during his absence and there would be the need from time to time to refer to such documentation in the context of court proceedings. Accordingly we conclude that the respondent was simply requiring the applicant to meet the relatively high standard of English that the job necessitated."

13. As to limitation, the Tribunal found at paragraph 12 of their reasons that the Appellant's complaint that from 1996 he did not receive sufficient supervision and support for a prospective application for progression (the last application having been rejected in 1994) was a continuing act. The claim was not time-barred.

In these circumstances, for the purpose of this appeal, the complaint was dismissed.

The Appeal

14. The appeal came on for an ex-parte preliminary hearing before a division presided over by Mr Recorder Langstaff QC on 21 January 2002. On that occasion the Appellant was represented by Ms Romney as he is today. Ms Romney did not appear below.
15. Having considered the submissions made on behalf of the Appellant, that division rejected all grounds of appeal save for 2 which were permitted to proceed to this full hearing with the Respondent present. Miss Greatorex, who appears on behalf of the Respondent today, also appeared below.
16. Those 2 issues were identified by the Learned Recorder in his judgment at paragraphs 2 to 4 as follows:

(2) Contrary to our earlier inclination, Ms Romney who appears under the ELAAS scheme, and for whose submissions we are very grateful, has persuaded us that there is a case which might be properly arguable. It is on two bases: first, the Tribunal posed itself the questions which have been identified, following discussion at paragraph 3 of its Decision. Paragraph 3(1) poses a question which relates just as much, arguably, to a failure to obtain progression as it does to the support systems that were designed for that end. It is not clear to us that the Tribunal ever explicitly answered that question which they had identified as one of the central issues. Whether it did so implicitly to a sufficient extent to satisfy the legal requirements upon it, is we think, properly arguable.

(3) Secondly, we are persuaded that the Tribunal focused, for instance in paragraph 8 at the top of page 10 of its Decision upon the genuineness of the explanation put forward by the Respondent. It might have asked not only whether a belief was honest, but whether it was mistaken. We think that it is arguable that the Employment Tribunal did not sufficiently, either explicitly or implicitly, deal with the question whether there was any proper basis for a view which they found to be genuine. That, we think, relates to points which were made by Ms Romney to us in respect of paragraph 10 of the Decision, and we are again concerned that what might be thought to be the compressed nature of the reasoning of the Employment Tribunal in that paragraph should be fully examined.

(4) It is thus on those two bases: did the Employment Tribunal ever sufficiently address the question it posed as issue 3(1) and secondly, did the Employment Tribunal consider sufficiently whether there was any proper basis for the Respondent's genuine view of the abilities of the Appellant that we think this appeal might be argued further.

17. We shall consider each of those two grounds in turn.

(1) We can take the first ground shortly. In our judgment it is perfectly clear from the first sentence of paragraph 8 of the Tribunal's reasons that the assumed less favourable treatment encompassed both the alleged lack of support and the Appellant's failure to obtain progression. Thus the Tribunal dealt in paragraph 8 with the question which it had posed in paragraph 3(1) and (2) of the reasons. There is in our judgment nothing in this ground of appeal.

(2) The question here is, did the Tribunal go beyond asking itself whether the Respondent had a genuine belief in their reasons put forward by way of explanation for the assumed less favourable treatment, to test whether there was a basis in fact for such belief. We are persuaded by Ms Greatorex that they did. We are told and accept that there was documentary evidence before the Tribunal relating to the supervision sessions chronicled in the Tribunal's account of the story. Applying the valuable guidance provided by Lord Justice Sedley in Anya v. University of Oxford (2001) IRLR 377 we are satisfied that the Tribunal have demonstrated, by their findings at paragraph 8 of their reasons, that they have gone beyond looking simply at the credibility of the Respondent's witnesses as such and tested the explanations which they gave, not simply against the documentary evidence, but also against the case advanced by the Appellant. For example, in paragraph 8 they reject the Applicant's case that the Respondent's emphasis on social theory and practice was simply a smoke screen or hurdle put in his way to prevent his progression and indeed go onto find, fairly we think, contrary to Ms Romney's submission, that the Appellant in advancing his belief, himself failed to appreciate precisely what was required of him is his role as Education Welfare Officer. Secondly, they find that the criticism made of the Appellant during supervision sessions was constructive criticism. In other words, they accepted the criticism that was there made. Further, in relation to the notes made by the Appellant of visits, interviews and plans of action, they find that the Respondent was entitled to require the Appellant to meet the relatively high standard of English that the job necessitated and implicitly we think, there found that the standard which he displayed did not reach that exacting standard.

18. Having done so, they accepted the Respondent's explanation. It was genuine and credible. They were entitled to do so in our judgment and having arrived at that conclusion to go on to dismiss the complaint in accordance with the approach suggested by Lord Justice Neil in King v. Great Britain China Centre (1991) IRLR 513, approved by the House of Lords in Glasgow City Council v. Zafar (1998) IRLR 36 and adopted in Anya.
19. Whilst the Tribunal do not, in terms, refer to unconscious as well as conscious discrimination in their reasons, as Ms Romney points out, we are satisfied, in accordance with Anya, that the Tribunal have negatived a finding of unconscious discrimination by their findings of primary fact. Findings from which they did not feel able, permissibly in our view, to draw an inference of unlawful discrimination. See Chapman v. Simon (1994) IRLR 124, paragraph 43 (per Lord Justice Peter Gibson)

Conclusion

20. Having considered the outstanding grounds of appeal in this case, we are unable to discern any error of law in the Tribunal's approach. Consequently the appeal must be dismissed