United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MS DIYA SEN GUPTA (of Counsel) Instructed by: Bury Metro Racial Equality Council Oddfellows House 94 Manchester Road Bury BL9 0TH
For the Respondent	MR CARLO BREEN (of Counsel) Instructed by: Oldham Metropolitan Borough Council Legal & Democratic Services P O Box 33 Civic Centre West Street Oldham OL1 1UH

SUMMARY

Race Discrimination: Direct -&- Inferring Discrimination

Tribunal said in terms that discrimination could not be inferred in the absence of racial motivation. Did not apply the Igen guidelines. Appeal allowed; and remitted to fresh Tribunal.


 


HIS HONOUR JUDGE BURKE QC

The Nature of this Appeal

1.                   In October 2002, Oldham Metropolitan Borough Council, whom we will call "the Council", wished to appoint someone to the post of Community Safety Co-ordinator. Mr Penhale, who was employed in the Council's police unit, drafted a job description, a person specification and an advertisement. The advertisement was published; and as a result, 19 applicants for the post came forward, including the Appellant, Mr Ayub.
2.                   A short-listing panel was formed consisting of Mr Baynes, a Police Superintendent who was police commander for Oldham, Mr Kilburn, the Council's Chief Executive and Ms Richards, Chief Executive of the Oldham Primary Care Trust. The panel considered each application and placed them in three piles; one which consisted of those applicants in whose cases all three panel members agreed that they should be rejected, one for those applicants in whose cases all agreed that they should be short-listed and a third pile of those applicants whose cases needed further discussion. Mr Ayub was not short-listed. He sought to compare himself with Mr Keown and Mr O'Connell, both of whom were white and were short-listed; it was Mr O'Connell who was eventually appointed to the post. He complained to the Employment Tribunal that the failure to short-list him constituted racial discrimination.
3.                   His claim has had a long and chequered history. It was first heard by the Employment Tribunal, sitting in Manchester and chaired by Mr Robinson, in late 2003 and early 2004. That Tribunal found against Mr Ayub. However, he successfully appealed to the Employment Appeal Tribunal; indeed, as we understand it, the Council did not oppose his appeal. His claim was therefore remitted for a re-hearing by a differently constituted Tribunal.
4.                   That re-hearing took place over two days in March 2005 before a Tribunal chaired by Mrs Earnshaw. In a judgment promulgated on 21 March 2005, the Tribunal decided, for the reasons set out in that judgment, that Mr Ayub's claim again failed. He now appeals against the conclusions of that second Tribunal. If his appeal succeeds, it is not suggested that we could decide upon his claim; what is sought on his behalf is a second remission. If that happens, the history of this claim will appear to have been more than ordinarily unfortunate and more than ordinarily expensive; but that must not influence and has not influenced our decision, which must be made entirely on the merits of the arguments which we have heard.
5.                   There is another element of misfortune about this case. Mr Ayub died a month or so ago; but Miss Sen Gupta has appeared for Mr Ayub's widow, who is the personal representative of his estate and has secured her instructions and authority to proceed with this appeal, although it is obvious that, if there were to be a further remission, Mr Ayub would not be able to give evidence at that remitted hearing which would take a somewhat different form from the previous hearings. We have made an order substituting Mrs Ayub as personal representative of Mr Ayub's estate; and Mr Breen, who has appeared on behalf of the Council, has accepted that, as a result of that order, the appeal is properly brought and pursued.

The Tribunal's Decision

6.                   Before coming to the grounds of appeal, it is necessary to say more about the facts as the Tribunal found them to be and the basis of the Tribunal's decision. Each of the three panel members said in evidence that the process adopted, involving the creation of the three piles to which we have referred, was the way in which they initially sought to distinguish between the 19 applicants and that they carried out that exercise on the basis of the extent to which the applicants had demonstrated evidence of the required competencies. There was then discussion involving scrutiny of the applications of those applicants who were in the third pile. There had been a matrix on which the panel were able to record their decisions. Mr Baynes' matrix was completed by Mr Penhale; Mr Kilburn's matrix appeared to have been lost. From this process, five candidates for short-listing emerged, one of whom was non-white. Mr Ayub pointed out that some of the initial decisions in one or more of these matrices had been changed; Ms Richards had initially indicated a negative view of Mr O'Connell and a positive view of Mr Ayub and Mr Keown, but the Council's case was that, after discussion, the position was reached in which Mr Ayub was not, and Mr O'Connell and Mr Keown were short-listed.
7.                   The Tribunal, having found the facts to which we will return in a moment, directed themselves at paragraph 10 of their judgment as to the law in these terms:

"Following the guidance in Barton v Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332, as refined by the Court of Appeal in the conjoined appeals of Igen Ltd & Others v Wong, Chamberlain Solicitors and Another v Emokoae and BruneI University v Webster and Others [2005] EWCA Civ 142" [now we should interpose fully reported in [2005] IRLR 258], "the Tribunal is required to follow a two-step approach. The first step is to decide whether the claimant has proved facts from which the conclusion could be drawn that the respondent has treated the claimant less favourably on grounds of race. In considering what inferences should be drawn from the primary facts, we must assume that there is no adequate explanation for the facts. Only if the claimant succeeds in jumping this hurdle does the burden shift to the respondent to prove that the treatment was in no sense whatever on the grounds of race".

It is not suggested that that self-direction was other than correct in law. The Tribunal then said at paragraph 11:

"Mr Ayub's argument is that he was treated less favourably than Mr Keown and Mr O'Connell, who are white, in that they were in effect 'talked up' from initial somewhat unfavourable views by Ms Richards whereas he was 'talked down' during the subsequent discussions. We set this in the context of a selection process in which individual preliminary views were subject to more thorough discussion by the whole panel and in which an individual of Asian origin was short listed. In this context, even if we were to allow that Mr Ayub was subject to less favourable treatment than two of the other candidates, we are unanimously of the opinion that it would be entirely impermissible to conclude, or draw an inference, that the respondent had thereby committed an act of discrimination. To do so would require us, in effect, to infer that Mr Baynes and Mr Kilburn were racially motivated against the short-listing of Asian candidates whereas the actual evidence tells us precisely the opposite".

The Tribunal then expressed their conclusion in paragraph 12 in these terms:

"In these circumstances, we conclude that the claimant has not made out a prima facie case of race discrimination and hence the burden does not shift to the respondent to satisfy us of the explanation for the treatment".

The Grounds of Appeal

8.                   Miss Sen Gupta, who appears for Mrs Ayub who is now the Appellant, through the Bar Pro Bono unit, put forward numerous grounds of appeal which we can briefly describe in this way: that the Tribunal misdirected itself in paragraph 11 in the sentences which we have just recited (which include the reference to racial motivation) and also in appearing to express the view that the fact that one Asian candidate was short-listed excluded the possibility of there being racial discrimination. Those two points cover grounds 1 and 2 of the Notice of Appeal.
9.                   The Notice of Appeal goes on to assert in Ground 3that the Tribunal failed to take into account as a relevant consideration the fact that the Council's ET3 contained only a bald denial of discrimination and did not give adequate and proper particulars of the Council's case in ground 4 that the Tribunal failed properly to apply the burden of proof; in ground 5 that Mr Ayub's representative at the hearing was not allowed to cross-examine on a point on which he should have been allowed to cross-examine and in ground 6 that the Tribunal's reasons are inadequate and defective.
10.               However, at the outset of the hearing of this appeal, we drew the attention of Counsel to the inevitability, as we saw it, that if the appeal succeeded on the first ground, namely that the Tribunal had misdirected themselves in law in the last sentence of paragraph 11, in which they refer to racial motivation, the Employment Appeal Tribunal would have to allow the appeal and remit this case, unhappily for a second time, to a differently constituted Tribunal for re-hearing. Miss Sen Gupta and Mr Breen agreed that that was so and further agreed that, in the circumstances of this appeal, it was sensible for us to hear both Counsel address us on ground 1 and to reach a decision in relation to ground 1 before moving on to the many other grounds of appeal which, both Counsel agreed, it would be not necessary to do if Mrs Ayub was successful on ground 1. Of course it would be necessary to do so if she was not. We therefore decided to hear Miss Sen Gupta and Mr Breen on ground 1 alone and have done so. We are grateful to them for their competent and succinct arguments.
11.               Miss Sen Gupta's submission can be briefly summarised. It is very simply that the task which the Tribunal had to carry out in deciding, on the primary facts, whether there had been discrimination did not require them, if Mr Ayub was to succeed, to infer or conclude that Mr Baynes or Mr Kilburn or, for that matter, anybody else had been racially motivated and that a finding of racial motivation is not a necessary prerequisite to a finding that there has been racial discrimination. We have not been taken expressly to the important and valuable guidance as to how a discrimination case should, in practice, be viewed and as to what questions a Tribunal should ask themselves in such a case, as set out by the Court of Appeal at the end of their judgment in Igen v Wong and the other associated cases. But, as is well known, in that guidance, which modified to a degree the guidance give by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, the Court of Appeal confirmed that, as a result of the amendments to the Race Relations Act and the Sex Discrimination Act relating to the burden of proof, a two-step approach was necessary, that it is for a Claimant who complains of discrimination to prove, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination and that, if such facts were proved, it was then for the Respondent to prove that he did not treat the Claimant less favourably on the grounds of race or sex as may be. There is nothing in either Barton or Igen to suggest that racial motivation is a factor as to which a Tribunal must be satisfied before they can come to a conclusion in favour of an applicant on either part of the two-step approach identified in those authorities.
12.               Miss Sen Gupta referred us to the well-known decision of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572, the facts of which are unnecessary for us to set out, save that Mr Nagarajan's claim was for one of racial discrimination and victimisation arising out of the circumstances of his applications for various posts in London Regional Transport. The leading speech was given by Lord Nicholls of Birkenhead who, at paragraph 12, said this:

"The first point raised is whether conscious motivation is a prerequisite for victimisation under section 2 of the Act"

It is common ground that what Lord Nicholls said, and what the House of Lords decided, applies equally to a complaint based on primary discrimination as to one based on victimisation. Lord Nicholls went on in paragraph 13 to say this in the context of direct discrimination:

"13. Thus in every case, it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on the 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 processing of the alleged discriminator. Treatment favourable or unfavourable is a consequence which follows from the decision. Direct evidence of the 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.

14. The crucial question just mentioned is to be distinguished sharply from the second and different question. If the discriminator treated the complainant less favourably on racial grounds, why did he do so and the latter question is strictly beside the point when deciding whether an act of racial discrimination occurred".

And then at paragraph 17, Lord Nicholls said:

"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 the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of the claim, members of the 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 section 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".

13.               Lord Hutton and Lord Hobhouse agreed with Lord Nicholls and with the speech of Lord Steyn, who gave a separate speech. It is not suggested that Lord Steyn differed in any material respect from the principles set out in Lord Nicholls' speech to which we have just referred.
14.               Mr Breen does not suggest that Miss Sen Gupta's analysis of the relevant law and of the importance of the principle that it is not necessary for an Employment Tribunal to look for racial motivation is other than correct. He accepts with frankness and professionalism, which is admirable but perhaps also realistic in the circumstances, that the relevant part of paragraph 11 of the Tribunal's judgment, to use his words "puts me in difficulty" and that the Tribunal appear, in the words they used at the end paragraph 11, to have applied the wrong test. He accepts, too, that in order successfully to resist the force of Miss Sen Gupta's submission that the Tribunal have approached the vital questions in this case by applying the wrong test, he has in effect to demonstrate that the Tribunal's reasons, taken as a whole, showed that they could not have applied the wrong test whatever words they used.
15.               To this end, he submits that at the Tribunal hearing, the applications of Mr Ayub and those of his two comparators were scrutinised in detail in the course of the evidence and the Tribunal, in paragraph 9, expressed the real basis for their conclusion that Mr Ayub's case failed. In that paragraph they said that Mr Ayub's application was felt to be vague, brief and lacking in detail in not providing evidence of the competencies and that it was thought by the panel to be inappropriate for Mr Ayub to have simply photocopied part of his job description rather than indicating what he actually did. Mr Breen accepts that, in that paragraph, the Tribunal did not set out how Mr Ayub's application with those defects differed from the application of his comparators; but he says with some weight and good sense, that point is not relevant to the issue now under examination. There, he says, is to be found the meat of the Tribunal's decision and the reasons why they came to the conclusion that there has not been racial discrimination in this case, either in the sense that they came to the conclusion that there had not been differential treatment which could be on the ground of race. We put it that way because it is clear from the way the Tribunal expressed themselves that they did not move on from that conclusion for the second step in the two step exercise which they have outlined.
16.               Unhappily, while the Tribunal did indeed find facts in paragraph 9 which might have led to a conclusion in the Council's favour if the Tribunal had applied the right test, it is clear that they applied the wrong test for the reasons we have set out. Whatever facts they found in paragraph 9, paragraph 11 tells us that they then assessed those facts not by going through the steps set out in the guidance in Igen but by asking themselves the wrong question and by asking themselves that question because they felt it was necessary to do so. They clearly directed themselves on the basis that they could not come to a conclusion that there had been an act of discrimination unless Mr Baynes and Mr Kilburn were racially motivated. In so directing themselves or in so expressing themselves they applied the wrong test in reaching their conclusion on the vital issue. What would or might have been the result had they applied the right test we need not and should not speculate upon beyond saying that we cannot exclude the possibility that they might, had they applied the right test, have reached a different result.
17.               Accordingly, with some regret because of the history of this case, we must allow the appeal on the basis of the ground set out in ground 1 of the Notice of Appeal; Mrs Ayub's claim, as it now is, must be remitted to be re-heard by a differently constituted Tribunal. It is agreed that, in those circumstances, it is unnecessary for us to deal with the other points raised in the Notice of Appeal and, indeed, better that we do not embark on those other points at all since the matter is going to have to be reheard, unless the parties can come to some arrangement before the hearing - which we have to say we all hope they manage to achieve.