United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mr S Miller, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB
For the Respondent	Mr B Napier, Queen's Counsel Instructed by- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT

SUMMARY
RACE DISCRIMINATION

Racial discrimination - evidence


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer against a finding of racial discrimination made by the Employment Tribunal sitting in Glasgow. A monetary award was made. There was a separate question about victimisation.
2. The judgment of the Tribunal is lengthy but it determined that there had been unfair treatment towards the now respondent in the selection process for a particular post.
3. Against that background the nub of the Tribunal's decision is as follows:-

"The foregoing, however, does not completely deal with the point made by Mr Miller who argued that, if the applicant merely proves that he was treated unequally and that the unequal treatment is consistent with race discrimination, but equally consistent with the hypothesis that he was accorded that unequal treatment on grounds other than race, albeit undesirable or even wrongful grounds, he has failed to prove his case. Thus, if on the applicant's own evidence it is as probable that the unequal treatment can be put down to favouritism as to unlawful discrimination, the applicant cannot succeed. Further, argued Mr Miller, some of the testimony of the, applicant himself made it clear that - at the very least - he suspected that the treatment accorded to him could be put down to favouritism or a bias in favour of employees of the respondents' Housing Department.

We do not dissent from the view that, if an applicant shows that h has been unfairly treated, and that that unfair treatment is capable of being explained equally by, nepotism or race discrimination, he had failed to prove this case, because ex hypothesi he has not proved his case on a balance of probability but think that it is essential to bear in mind certain further matters. In the first place, we are entitled, in deciding what inferences should be drawn from the proven facts, to bear in mind that the facts are, or must be deemed to be, peculiarly within the knowledge of the respondents, so that we may reasonably expect from them a full and candid explanation for the treatment accorded to the applicant, and, in the absence of such, they cannot reasonably complain, if full weight is given to the evidence capable of implying race discrimination. In the second place, Mr Miller's argument proceeds, in our view, on the fallacious assumption (at least in the circumstances of this case) that the two explanations for the unequal treatment accorded to the applicant (favouritism in favour of the successful candidate as opposed to racially inspired bias against him) are mutually exclusive, but we do not accept this. Favouritism and racism are frequently, if not invariably, two sides of the same coin so that the respondent who proves that unequal treatment can or should be put down to favouritism has merely proven a "neutral" fact.

Against that background the tribunal considered whether the applicant had shown facts sufficient to justify an inference that the treatment accorded to him was "on racial grounds".

In the first place, as pointed out in Bahl, although behaviour falling below the standard reasonably to be expected of an employer cannot per se give rise to an inference of race discrimination, (though it may give rise to an inference of unequal or unfair treatment) such behaviour coupled with a failure to' provide an adequate explanation (adequate in the sense of not giving rise to an inference of race discrimination, even if inferring lack of reasonableness) may give rise to an inference of race discrimination. We are satisfied that no such explanation has been given in this case, and the door is, therefore open to the conclusion that the respondents had discriminated against the applicant contrary to the provisions of the Act. Even, however, if we are wrong in so concluding, and we ought to conclude that the treatment of the applicant can be put down to favouritism, that explanation does not take the respondents anywhere, because it is not an explanation that displaces race discrimination.

We now deal with a submission from Mr Hunter. Put briefly, it was his position that, as a result of Section 54A, once the applicant had demonstrated facts from which a tribunal could, in the absence of an adequate explanation from the respondents, infer discrimination, the tribunal were compelled to find race discrimination established, unless the respondents discharged the onus of proof incumbent upon them in terms of the said section. As above noted, the applicant has established that he was subjected to unequal treatment, no satisfactory explanation has been given for that unequal treatment, and accordingly, the conditions for the application of the section were fulfilled. In these circumstances, the tribunal had no choice but to find the applicant's case proven.

If this case had arisen on the facts that we have found proven prior to the coming into force of the section, we would have been inclined to the view that, even if it were not perverse of the tribunal to refuse to draw the inference of discrimination, it would certainly be wrong to suggest that a tribunal or member prepared to draw such an inference had reached a perverse conclusion just as a member or tribunal that failed to draw that inference could not reasonably have been described as perverse. In our view, it is this kind of situation to which Section 54A is intended to apply and we must give effect to it. Accordingly, we are satisfied that the respondents discriminated against the applicant within the meaning of Section 1(1)(a) of the Act.

We add that, even without the statutory presumption, we would still have found in favour of the applicant: we are satisfied that the respondents not only did not treat the applicant fairly, but also that they fell seriously below the standard to be expected of them. There has been a total lack of explanation for the failures; to the extent that there has been a vague suggestion of an explanation (favouritism), that explanation takes the respondents nowhere. On the other hand, the readiness to "mark down" the applicant and to "mark up" The successful candidate are readily explicable on the hypothesis that the applicant was treated as he was because of his racial or ethnic origins. Indeed no competing explanation was advanced before us."

4. The debate before us was in narrow compass, concentrating on three decided cases, as follows:-
King v Great Britain – China Centre [1991] IRLR 513 Anya v University of Oxford [2001] IRLR 326 University of Huddersfield v Wolff [2004] IRLR 534
5. In essence, at the end of the day, the dispute before us, was whether or not, as contended for by the respondent, represented by Mr Napier, Q.C., the Tribunal were entitled to draw an inference of racial discrimination having regard to the fact that it had found that unfair treatment had been meted out to the appellant without any explanation which rebutted the inference of racial discrimination, not least having regard to the reversal of burden of proof in such matters by the recent legislation.
6. However, Mr Miller, appearing for the appellants, concentrated on the interpretation of that issue by President Burton in University of Huddersfield supra, and, in particular, his consideration that there had still to be a prima facie inference of racial bias before the Burden of Proof Directive came into play to determine the issue as a matter of inference.
7. Having considered the opinion of the President carefully, it is our view that the Tribunal in this case went too far inasmuch that they drew an inference of racial discrimination against what was effectively a void on the evidence beyond the fact there was unfair treatment and that the now respondent was Indian. Applying the ratio of Huddersfield we consider that the Tribunal ought to have found that there was at least a prima facie case of racial bias before they could ultimately reach their conclusion of inference or failure to explain, and this they failed to do upon the evidence.
8. For this simple reason we are of the view that the decision on racial discrimination cannot stand and will have to be heard again by a separate Tribunal, since it is not open to us to determine the matter.
9. The issue of victimisation, is wholly separate, and we are entirely satisfied that the Tribunal reached a correct decision in this matter. The bringing of the present application was a protected act and it was clearly the case that the denial to the now respondent of the grievance procedure was related to that, and, therefore, unlawful.
10. In these circumstances this appeal is allowed to the extent of ordering a rehearing before a separately constituted Tribunal on the issue of racial discrimination. Quoad ultra it is refused.