United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H WILLIAMS (of Counsel) Instructed by: Messrs Bindman & Partners Solicitors 275 Grays Inn Road London WC1X 8QB
For the Respondent	MR N UNDERHILL QC Instructed by: Messrs Nabarro Nathanson Solicitors Lacon House Theobald's Road London WC1X 8RW


 


HIS HONOUR JUDGE ANSELL

1. The Appellant, Dr Anya, claims in these proceedings against the Respondents, the University of Oxford and Dr Roberts, that his non-selection in 1996 for a post as a Post Doctorate Research Assistant in the Department of Materials at Oxford University constituted racial discrimination.
2. In particular, he alleged that he, being a black Nigerian permanently resident in this country, was discriminated against in the award of Research Assistant; the successful candidate being Dr Lawrence, who is white. His particular complaints related to his personal and professional relationship with his supervisor, Dr Roberts, and the alleged racial motivation, whether consciously or subconsciously, shown by Dr Roberts in relation to the interview procedure for this particular post; and also in relation to seven other incidents leading up to the interview.
3. The Appellant's claim was originally heard by an Employment Tribunal in March 1998 and was dismissed after a hearing lasting some 11 days. That original decision was eventually considered by the Court of Appeal and they found that the original decision was flawed, in that the Employment Tribunal had failed to make findings in relation to the seven previous incidents to which I referred and thus had failed to come to any conclusion as to the impact on those previous incidents as to the truth of what happened within the interview procedure; and, as Sedley LJ said, particularly in terms of racial bias.
4. The matter was therefore remitted back to the Tribunal and they held a further hearing over some 9 days in December 2001. Their unanimous decision was to dismiss the complaint.
5. This appeal proceeds by way of leave on three grounds, although it is right to say, as was pointed out in the Respondents' helpful submissions, that the Preliminary Hearing had the gravest doubts as to whether there was anything in the grounds of appeal, but thought there was just enough in the first ground, but in fact permitted for convenience all three matters to proceed.
6. The main and substantive ground of appeal – and the one that has taken up most of our time this morning in helpful submissions from both Counsel – relates to the allegation that the Tribunal, whilst investigating and making findings in respect of the seven preliminary incidents, failed to consider the cumulative effect of those incidents, particularly in the light of the final act alleged of discrimination, namely the interview procedure and the circumstances leading up to that interview. This has been termed the "fragmentation" argument.
7. The other ground of appeal relates to the Tribunal allegedly failing to deal properly with the allegation concerning the effect of the interview panel failing to send out, in breach of their procedure, a proper package of information and the effect that might have on the Tribunal's findings on discrimination.
8. Lastly it is alleged that the Tribunal failed properly to deal with the submission that the Respondents' contention that, in relation to both the interview procedure and also the preliminary incidents, the Appellant performed poorly, was exaggerated or even greatly exaggerated by the Respondents, and in particular by Dr Roberts. I pass then to deal with those three matters, starting with the so called fragmentation argument.
9. The Tribunal decision dealt with the seven previous incidents, setting them out in paragraph 30, and dealing with them in detail, commencing in paragraph 41 through to 48. With regard to two of those incidents, using the numbering that appears in paragraph 30 (a) and 30 (c), the Tribunal came to a finding of fact that there was no less favourable treatment with regard to the particular incidents alleged, namely an alleged failure on Dr Roberts' part to prepare an agenda for the Applicant as the duties of his post at the commencement of his project and a failure to give him the opportunity to present work at external conferences.
10. With regard to the other allegations – (b), (d), (e), (f) and (g) – they were fully investigated by the Tribunal and findings were made in relation to those incidents. They did not specifically come to findings as to whether there was or was not no less favourable treatment; but in every case they found that there was an innocent explanation for the manner in which Dr Anya had been treated in terms of the allegations made. For example, they rejected an allegation that he had not been given the opportunity to supervise two students but Dr Lawrence had been; similarly they rejected the complaint that Dr Lawrence was named as a Research Assistant on an unsuccessful grant application and the Appellant was not.
11. In every case the Tribunal found that there was an innocent explanation for the events which had occurred. In no event taken individually did they find the slightest suggestion of any form of racial bias as far as Dr Roberts, or indeed others concerned in these events, were concerned. In paragraph 49 they then go on to say this:

49 "Both for our particular findings as to Dr Roberts himself, which we later refer to and our evaluation of these matters raised and the explanations given, we find nothing in them to lead us to draw an inference of a discriminatory attitude by Dr Roberts to the Applicant."

12. The Tribunal then go on to deal with the main complaint; that is, the non-appointment to the Brite Euram project and the circumstances relating up to the selection process, the selection for interview of the Appellant and Dr Lawrence, and the actual interview itself.
13. Just pausing there, we note that Dr Roberts, according to the Tribunal's findings, played very much a "backseat" role as far as the interviewing process itself was concerned; the Tribunal were particularly impressed by the quality of the evidence from the other two interviewing officers, particularly Dr Czernuszka, and there was a finding in the evidence that Dr Czernuszka said that the difference between the two candidates (that is, the Appellant and Dr Lawrence) in Dr Lawrence's favour, was described as a "very clear margin" (paragraph 55).
14. In paragraph 57 there is a quite thorough examination of Dr Roberts as an individual and halfway through that paragraph he is described by the Tribunal as "a particularly sensitive individual and his whole background militates against being a conscious or unconscious racist." Finally, in paragraph 58, they say this:

"…there is not a scintilla of evidence pointing to any discriminatory treatment by Dr Roberts to Dr Anya."

15. I shall return to those findings, but it is convenient if I refer to the law as far as the first issue is concerned, the so-called fragmentation issue.
16. We have reminded ourselves of course of our role in this court but in particular words of Lord Denning in Hollister v NFU [1979] ICR 542 in the passage coming at the end of the judgment 553A, where he stated that "it is not right to go through the reasoning of these Tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence". To this can be added the words in the often quoted case of Meek v City of Birmingham District Council [1987] IRLR 250, the passage at 251, paragraph 8:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and the summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusions which they do on those basic facts. The parties are entitled to be told why they have won or lost."

17. The issue of incidents occurring before the actual act of discrimination alleged was dealt with fully in a case of Qureshi v Victoria University of Manchester [2001] ICR 863. It appears that this decision was unreported at the time that our case was heard by the Court of Appeal; however, Qureshi is cited extensively in their judgment and as a result was reported soon afterwards.
18. In Qureshi there were two complaints relating to failure to promote on the grounds of racial discrimination (and indeed also victimisation) in 1992 and 1993. Those proceedings came to be heard together and the court also had to deal with numerous previous incidents by way of background factual material for them to consider. The court was concerned as to how to analyse those previous incidents and the effect it would have on the allegation of discrimination. I read passages from the judgment of the Mummery J, first of all at page 865:

"The allegations of less favourable treatment, racial discrimination and victimisation were emphatically denied. In addition to the acts of discrimination complained of in the Originating Applications, the Tribunal heard evidence of numerous incidents alleged to have occurred from 1998 onwards and relied upon by Dr Qureshi as evidence that the university had committed the alleged acts of discrimination against him on racial grounds. The Tribunal considered each of those incidents in detail in the course of the Extended Reasons, made findings of primary fact and came to conclusions as to whether Dr Qureshi had received less favourable treatment and, if so, whether it was on racial grounds. In relation to many of the incidents the members of the Tribunal failed to reach unanimous decisions. The issues and sub-issues arising on the actual allegations in the Originating Applications were set out in the form of questions and answers in paragraph 168 of the Extended Reasons.

Most of the questions posed were given a simple "Yes" or No" answer, reflecting the division of views amongst the members on the numerous allegations and incidents considered in detail in earlier parts of the Extended Reasons.

19. Later on in the judgment he then goes on to deal with the successful arguments of the Appellant, put forward by Mr Duffy, which the court accepted. Page 869, letter C:

"The nub of Mr Duffy's submission on Dr Qureshi's appeal was that the Industrial Tribunal wrongly adopted a piecemeal approach to Dr Qureshi's complaints of race discrimination and victimisation. By adopting the wrong approach from the outset the Tribunal had made a difficult task for an Applicant in an institutional race discrimination case even more difficult."

Later on at letter F:

"Mr Duffy's principal criticism is of the manner in which the Industrial Tribunal then proceeded to apply the defined approach in relation to every allegation made by Dr Qureshi, rather than solely in respect of the particular acts complained of in the Originating Applications. He submitted that the stated approach was only appropriate in respect of the specific complaints in the application. As a consequence of this erroneous approach, the Industrial Tribunal made full findings in relation to each of the allegations and then, depending on the finding it had made, it concluded there and then whether any inference should be drawn from the facts underlying that individual allegation. Where the Tribunal concluded that no inference could be drawn from the primary facts surrounding the individual allegation, it did not carry forward those primary facts into the critical process of making an overall inference of the grounds of action or decisions from the totality of primary facts.

In brief, the Industrial Tribunal had adopted a fragmented approach. That failed to take account of the overall context of the complaints in the case."

Just pausing there, it is argued that the overall context of the complaints in this case relate very clearly to the alleged racial motivation or otherwise of Dr Roberts.

"It also failed to take account of the fact that there may be racial discrimination, even though race or the fact that Dr Qureshi had brought proceedings under the 1976 Act may not have been the sole cause of the less favourable treatment of which he complained."

20. Finally, at the end of that judgment, there is this passage at 875 – Inferences:

(4) "Inferences

…

In the present case, it was necessary for the Tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the Respondent's explanations) in order see whether it is legitimate to infer that the acts or decisions complained of in the Originating Applications were on "racial grounds". The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.

21. It was that passage that the court adopted in Anya, which resulted in the Court of Appeal remitting this case back to the Tribunal for the second hearing.
22. We further cite two passages from the decision in Anya [2001] IRLR 377, from the judgment given by Sedley LJ, paragraph 15. He speaks of the Industrial Tribunal "embarking in exemplary fashion on the methodical approach which this court has said is essential". But then at the end of that paragraph he criticises the Tribunal. He says this:

"On none of these issues [namely the preliminary allegations in this case], from first to last, did the Industrial Tribunal record any conclusion as to where the truth lay in what, if anything, it indicated in terms of racial bias."

and again at paragraph 23:

"It is precisely because a witness who by himself comes across as essentially truthful may be shown by documentary evidence or by inconsistency to be less reliable than he seems that the totality of the evidence in a case like this has to be evaluated; and there was in this case no useful way of approaching the totality except through its parts. If, to take one instance from the foregoing, the Industrial Tribunal had accepted to any significant extent Dr Anya's evidence that Dr Roberts had not given him the academic and professional support that he was entitled to expect between 1994 and 1996, they would have to ask why this was so. In answering that question they might or might not have derived help from the conversations that Dr Roberts had had with Mr Briant about Dr Anya and the differing terms in which Mr Briant wrote about the new post to Dr Anya and Dr Lawrence respectively. They might then have needed to consider whether these were isolated events or part of a pattern; if part of a pattern, whether academic differences sufficiently explained it; if they did not, whether it was justifiable to infer the presence of a racial element. To the extent that Dr Czernuska had been the first to express his preference for Dr Lawrence, the Industrial Tribunal might have been concerned to establish what had been said in discussion before he did so."

23. The passages cited from Qureshi and Anya clearly indicate that, as regards each of the preliminary incidents, the Tribunal is required to make findings of fact by considering (a) the acts complained of; (b) whether there was less favourable treatment and (c) what explanation is offered. That is the fact finding operation that has to take place.
24. Ms Williams for Dr Anya suggested that that fact finding task should only involve making findings of regard to the acts complained of and whether there was less favourable treatment; and that a decision with regard to the explanation of those acts should be taken on a cumulative basis, looking at the evidence as a whole.
25. We do not agree with that approach and do not accept that that is the purpose of that primary fact finding operation. To remind ourselves of Sedley LJ's words, the Tribunal's task is to find out where the truth lays in relation to each incident and what, if anything, it indicates in terms of racial bias; and within the task of deciding whether there is or is not racial bias the explanation for each incident will have to be considered.
26. We accept, however, that the task does not stop there. We accept that there may be a series of acts which taken separately appear to have an innocent explanation but the cumulative effect of which, when considered in conjunction with other evidence, other documents or indeed the actual act of discrimination alleged, may take on a less than innocent complexion.
27. We accept that there is a requirement to look at the cumulative effect overall of the incidents. Was that done in this case? We are satisfied that the Tribunal indeed carried out that task. We have referred above to paragraph 49 of the decision and our view is that this was clear indication that the Tribunal not only considered the seven previous allegations but evaluated them against the findings that they had made with regard to Dr Roberts, to which we have made reference in paragraph 14 above.
28. Without wishing to adopt a too formalistic approach, we are satisfied that the Tribunal firstly came to a provisional view on each allegation and then considered the overall of the incidents on the key issue of the case, which was Dr Roberts' alleged racial motivation, conscious or sub-conscious.
29. Mr Underhill submits that there was nothing further to carry forward from that stage. In our judgment there is still an obligation to consider those preliminary events again when considering the alleged act of discrimination, which task was carried out by the Tribunal in their final paragraph. Having considered the events surrounding the interview and come to the conclusion that there was no discrimination within that interview process, and in particular finding that Dr Roberts had played a very minor role within that process, they conclude, in paragraph 58, by saying this:

"…there is not a scintilla of evidence pointing to any discriminatory treatment by Dr Roberts to Dr Anya."

30. We are therefore quite satisfied that the Tribunal did adopt the correct process of analysing the individual incidents, coming to a conclusion on those incidents and then considering the cumulative effect of those incidents on two distinct occasions; firstly in conjunction with their conclusions as to Dr Roberts as a witness and, secondly, with their conclusions on the interview process.
31. The second ground of appeal relates to the Respondents' non-adherence to their equal opportunities policy in failing to send out a person specification prior to the interview taking place with the result, as was highlighted by Ms Williams before the Tribunal and referred to in paragraph 34 of their decision, that it would enable the selectors to be relatively fluid about what they considered were the key skills for projects and the risks inherent in that process that subconscious racial discrimination could play a part in that decision.
32. The matter was dealt with in paragraph 52 of the Tribunal's decision. They refer to it not being an intention to discriminate against Dr Anya, but:

"…a general antipathy amongst some academics to adhere to administrative procedures. We regard this as a non-adherence to procedures through sloppiness as opposed to any malevolent intention although we do have to say that the Administrator Mr Briant could have been expected to have been more focused on this issue."

Later on in that paragraph they say this:

"The failure to provide a person specification we regarded as poor administration and indeed a matter of some seriousness. Nevertheless, both candidates had the project documentation the day before the interviews and the Applicant did not seem on the backfoot of this because he merely glanced at it for 40 minutes."

Finally, at the end of that paragraph there is this passage:

"We conclude that the non-adherence to parts of the university's equal opportunities policy while being regrettable, did not play any significance in the overall theme of things in relation to the interview process. Particularly we would state that it was laxity as opposed to any intention to have a detrimental effect on the Applicant."

33. The passage was framed in this particular way with specific reference to malevolent intention, because it was a key part of the Appellant's case before the Tribunal that, as far as Dr Roberts is concerned, the interview process was somewhat of a sham. It was described as "window dressing", even to the extent of an allegation being made of false documentation being provided before the interview process. The Tribunal in that paragraph firmly dismissed any suggestion that Dr Roberts had indeed acted in a malevolent way.
34. We are satisfied that the Tribunal did deal properly with the submissions made by Ms Williams on this point. We are quite satisfied that they would have had the issue of subconscious discrimination in their minds. It is a matter that all Tribunals have to consider as they did in paragraph 57 where they described Dr Roberts in terms which militated against him being "an…unconscious racist". We are satisfied that the issue of subconscious discrimination was properly dealt with by them in paragraph 52.
35. The final ground relates to the allegation that the Tribunal failed to deal with the suggestion that the Respondents had exaggerated the poor performance of the Appellant. We are satisfied that the Tribunal dealt with that issue, quite clearly, and we refer to the passage in paragraph 55 of the decision:

"Whilst not delving into specific matters, we are bound to take into account evidence submitted on scientific matters and the reservations expressed by Dr Warren, Dr Roberts, Dr Czernuszka and Professor Cantor regarding certain aspects of the Applicant's scientific understanding, particularly the Griffiths/Orowan principle. Even Professor Hendry had to concede that the end of (D81) was an incorrect scientific statement by the Applicant."

36. Earlier on when dealing with one of the preliminary allegations, at paragraph 44, the Tribunal said this:

"We also note that Dr Warren in his statement referred to some fundamental misconceptions in relation to the underlying scientific theory in the Applicant's papers. Amendments to papers are part and parcel of academic life. Dr Ahmed viewed any criticism of his work as constructive. Having regard to clear evidence that on certain scientific principles the Applicant was on shaky ground…"

37. We are quite satisfied that the Tribunal dealt properly with issues of exaggeration and we see no substance in the complaint that has been made.
38. Accordingly for these reasons we would dismiss the appeal.