United Kingdom Employment Appeal Tribunal

APPEARANCES

EATS/0004/04

 

For the Appellants	Mr S C Miller, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB
For the Respondent EATS/0015/04	Mr C Bvunzai In Person 31 Hollinwell Road Rosedale Park Summerston GLASGOW G23 5QE
For the Appellant For the Respondent	Mr C Bvunzai In Person 31 Hollinwell Road Rosedale Park Summerston GLASGOW G23 5QE Mr S C Miller, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB

SUMMARY
RACE DISCRIMINATION

Race discrimination


 


LORD JOHNSTON:

1. This is an appeal at the instance of the local authority against a finding by the Employment Tribunal sitting in Glasgow that they had racially discriminated against the now respondent, who also cross-appealed on a separate issue.
2. 2.                  The dispute arose out of a failure on the part of the appellants to appoint the respondent to a post for which he applied and was interviewed. The essential basis of the conclusion to the Tribunal was that the decision of the interview panel not to award the job to the respondent was racially motivated. The substance of their lengthy decision is to be found stated quite briefly as follows:-

"We reminded ourselves that a claim of direct discrimination consists of two elements: less favourable treatment and the existence of racial grounds for that treatment. We asked ourselves whether the, applicant had been treated less favourably when he failed at interview for the position of unit manager. There is no dispute that the applicant was unsuccessful at interview. We made a finding that the applicant had been treated less favourably by the respondent when he was not successful in securing the promoted post for which he was interviewed. We must now, having established that there was in fact less favourable treatment, satisfy ourselves that the reason for that treatment was racial and not some other reason. We noted that racial grounds need not be the sole cause of the discriminatory treatment, they need only be a major or substantial cause; and that the lack of motive or intention to discriminate is irrelevant.

We referred above to the King case and the guidance given: we reminded ourselves of point 4 of that guidance where it was said that "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."

We made a finding that the act complained of by the applicant actually happened - he was not successful in securing promotion. We also found that there was a difference in race involving the applicant. We have set out above the respondent's explanation of various points and the reasons why we found those explanations to be inadequate or unsatisfactory. In the circumstances where we found the respondent's explanations to be inadequate or unsatisfactory we had to consider whether we were prepared to draw an adverse inferences.

The Interview and Interview Assessment.

We made findings of fact - the serious breach of the code when the respondents failed to complete the interview assessment sheets after each interview; Mr Grant's lack of training on the respondent's code was a breach of the code; the use of the word "articulate"; the marking of the factor career development and the exclusion of the factor "qualifications - experience and have set out above why we did not consider the respondent's explanation to he adequate or satisfactory.

We decided in the circumstances, that it would be legitimate to draw an adverse inference that the interview panel's assessment of the applicant at interview was influenced by racial factors. We decided it was legitimate to' draw this inference in circumstances where the employer was unable to adequately/credibly explain why the applicant had scored lower than Ms McGuire in these factors. This failure was, in the opinion of the Tribunal, compounded by the indisputed fact of the breaches of the respondent's code which the respondent endeavoured - unsuccessfully to explain as standard practice."

3. The parties referred us to the following authorities:-

King v Great Britain – China Centre [1991] IRLR 513

Martins v Marks & Spencer plc [1998] IRLR 326

Anya v University of Oxford [2001] IRLR 377

The Law Society and Others v Bahl [2003] IRLR 640

The Law Society and Others v Bahl [2004] IRLR 799

Taylor v Dumfries & Galloway Citizens Advice Services [2004] SLT 883

Bryan & Bench t/a Bryant Hamilton & Co v Weir EAT/253/04

Kingston Upon Hull City Council v Dunnachie (No.3) and HSBC Bank plc v Drage [2003] IRLR 843

4. Mr Miller, appearing for the appellants, focused on the 5 aspects that the Tribunal mention in the passage we have quoted and analysed each one in turn to the basic proposition that there was no racial element to be found in any aspect of the matter. He submitted succinctly that the admitted failure on the part of the interview panel to follow the code that had been laid down by their employer in such matters, was non-discriminatory inasmuch that it applied to everybody, and, in any event, did not connote a racial explanation. He concentrated also on the word "articulate" as not in itself suggesting any form of racial connotation and with regard to the questions of marking and other factors he maintained that these were possibly relevant to the issue of selection but not again to any racial question. Mr Miller's submissions were cogent and we do not mean to do him any disservice by restating them fairly briefly.
5. Equally, the respondent appearing for himself, responded against a basic background that the Tribunal had asked itself the correct questions and had come to a conclusion they were entitled to reach upon the evidence.
6. We have to say at once that we recognise in King that the Court of Appeal admitted the proposition that where the case had a racial element in it and actions were taken or not taken by the employer, which were not adequately explained, an inference of racial motivation and thus discrimination could be inferred. However, it is important to recognise in that case that there were other cases where there was simply no question of racial discrimination on the evidence legitimately being raised.
7. We consider this case is one of those contained in that latter point. We can find no basis for the Tribunal assuming that there was a racial element in the non-selection of the respondent. It seems to us, to go down that line was nothing short of perverse in the proper use of that word. Apart from the fact the respondent is a black African, nothing else suggests in the case to our mind that he did not obtain the post for that reason. We consider that upon the evidence no Tribunal properly directed could have achieved a finding of racial discrimination in this case and the Tribunal, therefore, completely misdirected itself.
8. Mr Miller also attacked the findings of damages, not least in questions of multiplier, levels of salary, point of impact and promotional assessment. He also pointed out that the Tribunal had proceeded on gross earnings.
9. If this matter had been live before us we would have remitted it back to the same Tribunal for a complete re-assessment of damages because we consider that Mr Miller is right in each one of these points.
10. There remains the question of the cross-appeal which we allowed the respondent to lay before us by way of a statement for the sake of brevity and passage of time. We accordingly read that statement into the process without rehearsing it.
11. Suffice it to say that for precisely the same reasons as already stated, we do not consider any racial element entered into the matter of the second reference which seemed to be an exercise as part of the selection process. We consider the various points made by the Tribunal in this respect as to the conduct or attitude of the respondent's employee to be totally speculative and without foundation on the evidence that is laid before us.
12. For these simple reasons we consider this appeal must succeed. It will therefore be allowed and the decision of the Tribunal will be quashed. The cross-appeal is refused.
13. By way of postscript we require to make the following comments.
14. The hearing before the Employment Tribunal appears to have lasted 7 days and ranged over a number of issues which were far removed from the relevant ones. For example, the issue as to whether or not the employer had followed the code that had been laid down for such a procedure, is nothing to the point when it comes to a question of racialism. The failure so to act was reprehensible but is irrelevant. This focuses upon the fact that where parties are representing themselves, as here, it is extremely important to seek to focus the issue in advance of the actual hearing. In this case it would appear that the applicant is a frequent complainer on matters of racial discrimination, and, indeed, had a concurrent claim before the Tribunal with the one with which this Tribunal is concerned on appeal. It is not for this Tribunal to speculate as to whether he had an opportunity for advice which he either did not take or was denied but the fact remains is that this is typical case of a totally unnecessary process, notwithstanding the findings of the Employment Tribunal, which makes a mockery of the notion that the Employment Tribunal system represents a quick and speedy resolution of problems. It is to be hoped that in any case where a party litigant is representing himself, a preliminary hearing will be held in order to try and determine the real issues. This may impose a short-term burden on Employment Tribunal Chairmen but should have a long-term benefit.
15. We would simply wish to add that we do not wish to criticise the solicitor representing the employer throughout this process. He is well-known to this Tribunal and much respected.