United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR U EDOZIE (The Appellant in Person)
For the Respondents	MR J KENDALL (of Counsel) Instructed by: G4S Security Services (UK) Limited Sutton Park House 15 Carshalton Road Sutton SM1 4LD


 


SUMMARY

RACE DISCRIMINATION

Inferring Discrimination

Tribunal wrong to apply test in King v Great Britain-China Centre [1992] ICR 516 instead of applying s.54A of Race Relations Act 1976 on the basis that the Claimant was claiming "colour discrimination" – Chagger v Abbey National plc [2009] ICR 624 followed – but held that there was on the facts no substantive difference between the two approaches and that the Tribunal had been entitled on the evidence not to find race discrimination.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. The Appellant, who is black and of Nigerian ethnic origin, started employment as a security officer with G4S Security Services (UK) Ltd ("G4S") in February 2007. That company is the Second Respondent named in this appeal but on the Tribunal's unchallenged findings there is no basis for a claim against the First Respondent, Group 4 Securicor plc, and we will refer to G4S as the only Respondent.
2. Security Officer is a junior position, with no management status, and it appears from the papers that we have seen that the Appellant was earning about £6.50 per hour as his basic remuneration. But according to his CV he had in the past held senior managerial roles in other security companies and he is evidently an educated man of some ability. He has a degree in agricultural economics from a university in Nigeria and is at present studying for a law degree.
3. On 2 January 2008 the Appellant commenced proceedings in the Employment Tribunal alleging that he had been discriminated against contrary to section 4 of the Race Relations Act 1976 by the rejection of applications which he had made for no fewer than seven job vacancies. It is arguable that the pleading went somewhat wider than that; but we need not be concerned with that aspect, since by the time of the hearing it had been clarified that that was the nature of the discrimination case. The Appellant also raised claims for unpaid wages and holiday pay.
4. Those claims came before a Tribunal sitting at London South chaired by Employment Judge Behrens in August 2008. By a judgment and written reasons sent to the parties on 6 October 2008 the Tribunal, by a majority, dismissed the claims of racial discrimination and unanimously dismissed the claims for unpaid wages and holiday pay.
5. The Appellant appealed to this Tribunal as regards the dismissal of his discrimination claim. His appeal was initially held by Silber J to raise no arguable grounds, and the same view was reached by HHJ Serota QC on the submission of a fresh Notice of Appeal; but at a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 on 18 March 2009 HHJ Peter Clark allowed the appeal to proceed on limited grounds, which we will indicate presently.
6. Before us, as before the Tribunal, the Appellant represented himself, which he did with clarity and moderation. The Respondent was represented by Mr Joel Kendall of counsel, who did not appear before the Tribunal. We are grateful to him also for his assistance.
7. The allegation in this case was, as we have said, of "direct discrimination" within the meaning of section 1(1)(a) of the 1976 Act. Accordingly the question for the Tribunal was whether the rejection of each of the Appellant's applications was "on racial grounds" - that is, on grounds of "race, nationality or ethnic or national origins": see section 3(1).
8. Such discrimination would be contrary to section 4(2)(b) of the Act which renders it unlawful for an employer to discriminate against an employee:

"in the way he affords him access to opportunities for promotion, transfer or training or to any other benefits, facilities, or services or by refusing or deliberating omitting to afford him access to them."

Section 4 falls with Part II of the Act, which covers discrimination in the employment field.

9. Section 54A of the 1976 Act, which was inserted by regulation 41 of the Race Relations Act (Amendment) Regulations 2003 in order to give effect to Article 8 of EU Council Directive 2000/43/EC, provides by subsection (1):

This section applies where a complaint is presented under section 54 and the complaint is that the Respondent

(a) has committed an act of discrimination on grounds of race or ethnic or national origins which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f) or Part IV in its application to those provisions

…"

10. The complaint in the present case is, as we have noted, of discrimination contrary to Part II of the Act, which is one of the provisions referred to under section 1(1B). However, the Tribunal held, at paragraph 53 of its Reasons, that because, as it understood it, the Appellant's complaint was of dismissal on the grounds of "colour", which is not specified under section 54A, the provisions of that section had no application in the present case. It accordingly adopted the approach prescribed in the well known case of King v Great Britain China Centre [1992] ICR 516 which it summarised, at paragraph 53, as follows:

"The burden of proof of discrimination is on the Claimant but the Tribunal may properly draw inferences of unlawful discrimination from the primary facts where appropriate. A difference in colour and a difference in treatment is not by itself sufficient for an inference of discrimination to be drawn. Further, if the Tribunal should find that the actual reason for the act of the employer is one which is not discriminatory on unlawful grounds then of course the employee cannot succeed."

It also noted, at paragraph 54, that:

"Apart from the final application to which the Claimant referred, he is relying upon a hypothetical comparator. The Claimant is simply saying that the reason why he was not appointed to the posts, or the reason why his applications were rejected, is because of his colour."

11. The Tribunal's findings, applying that approach, appear partly in the narrative section of the Reasons and partly in the conclusions. Before considering those findings we should make two points by way of preliminary.
12. First, prior to bringing the proceedings the Appellant lodged a grievance relating to his non-appointment to the posts in question. That grievance was investigated by Mr Dezeure, the Respondent's national accounts manager and, in due course, rejected.
13. Secondly, it is clear that both the contemporary documentary evidence and the witness evidence about the appointments in question, as adduced before the Tribunal, was not very full. No witnesses directly involved in the decisions impugned were called to give evidence, although there was some indirect or hearsay evidence from such witnesses. The contemporaneous documentary evidence was patchy and in relation to one of the applications, as we will explain in more detail below, was particularly unsatisfactory. Mr Kendall sought to explain that state of affairs by telling us, on instructions, that the Respondent, which was represented before the Tribunal by one of its HR managers, came to the hearing in the understanding that it would be meeting a case based on indirect discrimination and specifically, as we understand it, indirect discrimination in relation to its practice of psychometric testing. He said that that understanding of the Appellant's case had been confirmed at the pre-hearing review. Such a case was indeed pleaded in the ET1 but there was also an explicit claim of direct discrimination, albeit unparticularised; and the Appellant for his part tells us that at the pre-hearing review it was confirmed that he was bringing his case on the basis of direct discrimination. We cannot get to the bottom of this difference, save to say that we have certainly seen no explicit evidence, such as we would expect there to be if this were the case, that the claim of direct discrimination pleaded in the ET1 had ever been abandoned. But, whatever the explanation, the fact is that the evidence was less full than would be expected in a case of this kind. Those evidential problems might, in principle, be relevant in various ways. First, insofar as the Tribunal held that evidence had been deliberately withheld that might be a basis on which an inference of discrimination could be drawn, depending no doubt also on the other evidence available. Secondly, if such evidence as was available was inadequate to prove any matter on which the burden of proof lay on the Respondent, the Respondent would obviously have to take the consequences of that. Equally, the absence of evidence could prejudice the Appellant in relation to points where the burden of proof remained on him, i.e. essentially the burden of proving a prima facie case. As to that, however, the problem could in principle be guarded against by him, initially by use of the questionnaire procedure and requests for further information and/or disclosure prior to the hearing. The Appellant has indeed shown us that he did apply to the Tribunal for further information and disclosure, alleging that the Respondent was in breach of a previous general disclosure order, and that he had also sought witness orders in respect of several of the Respondent's managers. But both applications were refused: in the case of the application for witness orders, the refusal was on the basis that the Appellant had not given any indication of the evidence that he expected to be able to adduce from the witnesses in question. Those orders were not the subject of any appeal. But, subject to those points, the Tribunal had to reach its decision on the basis of the evidence which it had before it, however unsatisfactory that evidence may have been.
14. We turn to the Tribunal's findings in relation to the particular positions for which the Appellant applied.
15. (1) Area Operations Controller. The essence of the claim was that a Mr Vye was appointed to a position as Area Operations Controller, notwithstanding his being less well qualified than the Appellant. As to that the Tribunal said this at paragraph 20 of the Reasons:

"20. On the basis of the very limited evidence available to us we are not able to come to any conclusion as to the precise post for which the Claimant made any application, nor as to whether Mr Vye was appointed to the same post. Further, apart from the Claimant's wholly unsubstantiated allegation that he was more qualified than Mr Vye, there is no evidence before us from which we could possibly conclude that the failure of the Claimant to be appointed to any such post was by reason of his colour. We have further noted that although the Claimant referred to himself as being more qualified than Mr Vye, he did not seek at that juncture to define what he meant. The issue of qualifications is one to which we return below."

16. (2) Contract Manager. We need not say anything more about this position because at the hearing the Appellant withdraw this part of the claim: see Reasons, paragraph 21.
17. (3) Contract Manager (M25/M4): The bare facts relating to this vacancy and the Appellant's application are set out at paragraphs 22 to 24 of the Reasons as follows:

"22. The Claimant made a further application for the post of a Contract Manager. This was referred to at the hearing for the purposes of identification as the 'M25/M4' post. The intranet advertisement was dated 18 May 2007. The advertisement stated that the post would suit an existing manager. The Claimant was not a manager. The advertisement invited candidates to send a CV together with a covering letter. Mention of the Claimant's CV has already been made. We are not shown any covering letter that went with it. It is not in dispute, however, that the Claimant did apply.

23. The Claimant passed any initial sift which may have been carried out and attended at an Assessment Centre on 29 June 2007. A letter sent to the Claimant dated 5 July 2007 by Mr Renwick stated that after careful consideration it had been decided not to take the Claimant's application further on that occasion. The Claimant had previously spoken to Mr Renwick on the telephone, and had been informed that he had not been successful. We did not hear any evidence from Mr Renwick. He had left the Respondent in late 2007.

24. Three other existing employees of the Respondent went through the assessment process at the same time as the Claimant. They were all white. None of them was appointed. It is the finding of the majority of us that someone was appointed after the Respondent had carried out a further three sets of assessments elsewhere in the country. We were not told anything about the colour of the candidates at the other three assessments, nor of the colour of the successful candidate."

Those findings, which appear to have been unanimous, were based on correspondence with the Appellant and also on a letter from a Mr Jones, the Respondent's regional manager for facilities management, who had written to the Appellant declining an invitation to give evidence. In that letter he stated that his role had been to assess the presentations delivered by candidates during the assessment process but that he could not now remember the details. However, he did state that none of the internal candidates met the requirement for the role. We should also mention – though, inconveniently, the Tribunal does not mention it at this stage of the Reasons, but rather in relation to one of the later job applications - that in the course of Mr Dezeure's investigations he obtained a letter or memorandum from a Ms McGurk who had been involved in the


assessment in June 2007. As recorded at paragraph 48 of the Reasons:

"She stated that the Claimant's test results were below average and he scored poorly across all the exercises. She also referred to his later application for the LS Trillium post stating that he was notified that his application was not successful because it was only a month or so previously that he had been through the assessment process. She added that the Claimant's career aspirations were high, but that he was unable to provide any evidence of the basic level of competency required in the interview and presentation exercises, or the critical thinking skills which were required to meet the benchmark in verbal and numerical evaluation."

However, there was a complete dearth of contemporary internal evidence before the Tribunal of the kind which certainly must have been generated by the assessment process. The Tribunal heard evidence that when Mr Dezeure sought to investigate the position it was discovered that the papers, including the results of psychometric testing, had been destroyed "as part of the Respondent's data protection policy". One member of the Tribunal, Mrs Foster-Norman, rejected that evidence and concluded that the relevant papers were being deliberately withheld. The majority however did not accept that there was any deliberate withholding. Mr Vincent believed that although the documents had not been destroyed the Respondent's witnesses genuinely believed that they had been, in other words therefore presumably that they had been lost or gone astray. The other member, that is to say the Employment Judge, accepted the evidence that the documents had indeed been destroyed. Against that background the Tribunal recorded its decision as follows:

"56. We have been unable to agree concerning the Contract Manager (M24/M4) post. It has already been recorded that Mrs Foster-Norman has found that the relevant assessment documents had not been destroyed. Her views and judgment are now set out. It is the duty of the Respondent to provide the Tribunal with all relevant evidence so that a properly informed judgment can be made. The Respondent has not done so. Papers had been withheld. No evidence was supplied about the other assessments or interviews which we were told had taken place. There must have been a reason for this. Further, the Respondent had not called any witnesses who had been involved in the selection process. The investigation by Mr Dezeure was superficial, and somebody more senior should have been appointed with the necessary status and authority to delve further. The Respondent was not really interested in having the Claimant's complaint investigated thoroughly. Mrs Foster-Norman concludes that the Respondent was not prepared to put all relevant evidence before the Tribunal and therefore draws the inference that there has been unlawful discrimination against the Claimant in not having been appointed to the post in question.

57. While critical of the extent of evidence provided by the Respondent, the majority of us is unable to draw the inference of unlawful discrimination. We have accepted the evidence of Mr Woolf that none of the three white candidates who were assessed at the same time as the Claimant were appointed, and further that there were three other sets of assessments. The Claimant was not less favourably treated by comparison with those white individuals with whom he was assessed. Nobody was appointed. The Claimant was less favourably treated by comparison with whoever was appointed because the Claimant was not appointed to the post. We do not know the colour of the successful candidate. Even if that person were white, we would need more to be able to make a finding of unlawful discrimination. We are unable to find any unlawful discrimination by comparison with a hypothetical comparator."

18. (4) Managing Director G4S Monitoring and Response Services. This position was, as the title implies and as the Tribunal found, a very senior post advertised not only internally but externally through an agency. As the advertisement stated:

"The successful candidate would be an accomplished senior general manager with a demonstrated capability to manage and grow a standalone business with a large nationwide service organisation."

Turnover for the business was budgeted at £14 million in the current year, rising to £20 million. The salary offered was between £85,000 and £120,000. In response to Mr Dezeure's inquiry on the grievance, a Ms Ogden of the Respondents, who was involved in the recruitment, replied that "it was apparent from the Claimant's CV that he did not have the relevant experience": the key facts were the Claimant had no experience in that particular business and that the business had a turnover of some £14 million which was increasing. The Tribunal found unanimously, at paragraph 33, as follows:

"It is without any difficulty that we find as a fact that the reason that the Claimant was not appointed to the post is simply that it was apparent from looking at his CV that he did not have the experience required to be responsible for such a business with such a substantial budget."

19. (5)/(6) Business Manager and LS Trillium. The Tribunal took these applications together because the Respondent's decision was based on the same assessment, namely the assessment conducted at an Assessment Centre on 29 June to which we have already referred in connection with the Contract Manager (M25/M4) post. In relation to both the Appellant was formally notified by letter that he "did not meet the required benchmark necessary to proceed further with your application". As to that, we should note that the job was advertised as being for an existing manager who had the skill and drive to inspire 140 security personnel working on various sites. And the latter as seeking an existing "area manager, contract manager or business manager", i.e. a post at least two levels above that held by the Appellant. We have already referred to Ms McGurk's memorandum about the Appellant's performance at the Assessment Centre on 29 June. The Tribunal were again divided as regards these two posts. Paragraphs 58 to 59 of the Reasons read as follows:

"58. We are left with the posts of Business Manager and the LS Trillium post. We are also unfortunately unable to agree on the outcome in respect of these two posts. The Respondent states that the Claimant was rejected for each of those posts by reason of having performed badly in the first assessment which had been carried out in the preceding three months. We were not supplied with any details of the other candidates, nor of who was appointed. During his investigation Mr Dezeure appears to have accepted at face value the explanations given to him, and should have investigated further. Mrs Foster-Norman therefore again draws the inference that the reason why the Claimant was not appointed to the posts was because of unlawful discrimination.

59. The majority disagree. We find that the Claimant did perform badly during the June assessment process, and that the attitude of the Respondent in respect of the subsequent two posts was perfectly justifiable, and had nothing to do with the Claimant's colour. The psychometric testing policy refers to results over twelve months old being invalid for selection. The corollary of that is that 'younger' results are potentially valid."

20. (7) Aviation Operations Manager. The Appellant applied for this post in August 2007 and was invited to an Assessment Centre in September. There were only two candidates, the other being a Mr Sam Tudjaroglu, who is white. Mr Tudjaroglu was appointed. The Appellant's case was that he must have performed better than Mr Tudjaroglu at the assessment, and specifically on the psychometric testing, because he was a graduate. The Tribunal declined to draw any such inference. It found that a degree was not a qualification for a post at contract manager level, as this was, and indeed that the Respondent regarded the possession of a degree as a matter of no relevance in this context. It also noted that Mr Tudjaroglu already had a management position with the Respondent but that the contract on which he had been working had recently been lost to a competitor. It found at paragraph 43:

"We find as a fact that the reason that the Claimant was not appointed was that Mr Tudjaroglu performed better during the assessment process and also that he was already employed at management level, whereas the Claimant was not."

In relation to this particular appointment, the Tribunal did have some of the relevant contemporary material, albeit supplied only during the course of the hearing.

21. The starting-point for the Appellant's submissions is that the Tribunal erred in law in not applying section 54A of the 1976 Act. He relies on the decision of this Tribunal in Abbey National plc v Chagger [2009] ICR 624. In that case the Employment Tribunal had, like the Tribunal in the present case, not applied section 54A because it interpreted the Claimant's claim as being of discrimination on the grounds only of his colour. This Tribunal held that that was wrong for two reasons. First. on an analysis of the Claimant's pleaded case he had relied not only on his colour but also on his race or ethnic origin. But secondly, and in any event, it was held that discrimination on the grounds of colour fell within the words of section 54A "on grounds of race or ethnic or national origins". In the latter respect the Tribunal differed from an earlier decision in Okonu v G4S Security Services (UK) Limited [2008] ICR 598 (as it happens, the same Respondent as in the present case). The Appellant submits that both points are equally available in his case. He had in his ET1 referred expressly to being discriminated against "on the grounds of my race and colour": in other words he had not confined himself specifically to "colour discrimination". In any event, he relied on the decision in Chagger about the scope of section 54A.
22. Mr Kendall has not sought to challenge those submissions. In particular, he has not sought to suggest that Chagger was wrong in its disapproval of Okonu. In these circumstances we would say no more than that we propose to follow Chagger, although we should perhaps add that the opportunity for further consideration in the course of our pre-reading has not led us to doubt the conclusions in Chagger in any way.
23. Formally, therefore, the Tribunal misdirected itself. The essential question is whether that misdirection made or might have made a difference to its conclusion. Mr Kendall submits that it could not have done so. He submits that although there is, on the authorities, a difference between the approach required by section 54A and that proposed in King - see in particular paragraph 60 in the judgment of Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867 - they require consideration of the same factors and will, in most cases, produce the same result. He referred us to the observations to that effect by Longmore LJ in paragraph 67 of his judgment in Oyarce v Cheshire County Council [2008] ICR 1179. He submits that in the case of each of the applications in relation to which the Appellant complains the Tribunal made either a clear finding that on the evidence adduced that it could not conclude, absent an adequate explanation, that the Respondent had discriminated against the Appellant, so that the case did not pass "Igen stage one" (see Igen Limited v Wong [2005] ICR 931) or, positively, that the refusal was on grounds other than race, in which case the Respondent would succeed at "Igen stage two". He reminded us of the decision of the Court of Appeal in Brown v London Borough of Croydon [2007] ICR 909 to the effect there is no objection to a Tribunal proceeding direct to stage two if it thinks it right to do so.
24. In our view Mr Kendall's submissions are well-founded. We have already set out the Tribunal's reasoning in relation to each of the applications. Taking them in turn:

(1) Area Operations Controller: There is at paragraph 20 a finding that:

"there is no evidence before us from which we could possibly conclude that the failure of the Claimant to be appointed to any such post was by reason of his colour."

That is, in substance, the very question which arises at Igen stage one.

(2) Contract Manager: This aspect of the claim has been abandoned.

(3) Contract Manager (M25/M4): Although the language of the reasoning of the majority in paragraph 57 does not so clearly track the language of Igen as in relation to the first job, it seems to us that in substance the last two sentences nevertheless apply the same test.

(4) Managing Director: There is a clear finding at paragraph 33 that the Appellant was not appointed because he did not have the necessary experience. That therefore would, if valid, be a finding that the Respondent had proved a reasonable explanation at stage two.

(5) and (6) Business Manager and LS Trillium: The finding of the majority here is again a positive finding that the decision in both cases was reached on the basis of the Assessment Centre tests and was not on the grounds of the Appellant's colour. It would therefore satisfy the test at Igen stage two.

(7) Aviation Operations Manager: Again there is a clear finding - see paragraph 43 - as to a non-discriminatory reason for the Appellant's non appointment.

It is therefore in our view apparent that the Tribunal, despite its formal self-misdirection, asked itself the right questions, and that its answers mean that racial discrimination was not established.

25. The final question then is whether the Tribunal's answers in relation to the posts in question are sustainable in law on the evidence before it. It is convenient to set out paragraphs 5 to 7 of the judgment of HHJ Clark at the Rule 3(10) hearing, which is in effect the Appellant's Notice of Appeal. They read as follows:

"5. The starting point, it seems to me, is the observation of Mummery LJ in Madarassy v Nomura International Plc [2007] ICR 867, at paragraph 56, when considering a claim of unlawful discrimination to which the reverse burden of proof provisions applied. He there observed that the court in Igen Ltd & Ors v Wong [2005] ICR 931 (CA) rejected the argument that it was sufficient for a Claimant simply to prove facts from which the Tribunal could conclude that the Respondent could have committed an unlawful act of discrimination. The bar facts of the difference in status and the difference in treatment only indicate a possibility of discrimination; they are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the Respondent had committed an unlawful act of discrimination.

6. The question here is whether there was something more than a difference in colour and a difference in treatment. The present case is concerned with unsuccessful applications by Mr Edozie for promotion within the Second Respondent's business. Throughout their reasons the Tribunal are unanimously critical of the absence of documentation relating to the promotion applications and process for promotion. The question, it seems to me on appeal, is whether that lack of documentation may have amounted to 'something more' for the purpose of the exercise to be carried out by the Tribunal at stage 1 of the Igen v Wong test.

7. Looking at the critical findings by the Tribunal at paragraphs 57-59, apart from a potential misdirection in relation to King v Great Britain-China Centre, I am of the opinion that this appeal ought to proceed to a full hearing to determine whether or not the majority of the Tribunal failed to properly apply the stage 1 approach under Igen, and if so, whether the Chagger approach or that in Okonu should be followed and, if the former, whether the Respondent has provided an explanation which has nothing to do with the Claimant's colour."

26. We take first those aspects of the claim which were decided on, in effect, the basis of Igen stage one. In relation to none of them do we believe that the Tribunal was obliged as a matter of law - because that is what the Appellant must show - to find that the inadequacies of the documentation were such that it was obliged to find that the stage one test was not satisfied. The problems with the documents were most acute in relation to the Contract Manager (M25/M4) post. It is clear that the majority asked itself carefully whether the dearth of documentation constituted in Mummery LJ's phrase in Madarassy a sufficient "something more". It decided that it did not. That is a matter for the factual assessment of the Tribunal, with which we should not interfere unless it was perverse. In our view it clearly was not. Once the majority had held that as a matter of fact the documents were not being deliberately withheld the basis for drawing an adverse inference disappears. The Appellant sought to argue that the unwillingness of the Respondent to disclose the further information which he had sought prior to the hearing was itself a further indication of discrimination. It is not clear to us that the case was put that way before the Tribunal - certainly there is no reference to that factor in its apparently full and careful decision - nor does it seem to us that it was an aspect on which this appeal was permitted to proceed. But we would say in any event that the correspondence which he showed us did not show a plain case of evasiveness on the part of the Respondent such that inferences were bound to be drawn against it.
27. Turning to the applications in respect of which the Tribunal's decision turned on the application of Igen stage two, the position is straightforward. The Tribunal made clear factual determinations. The Appellant submits that the evidence before it was inadequate to support those determinations. We do not agree. The evidence may at some points have been scant but it was certainly not non-existent. There was, for example, clear evidence of the facts which the Tribunal found led to Mr Tudjaroglu being preferred for the job of Aviation Operations Manager and to the Appellant being found to be unsuitable for the Managing Director post. As regards the positions which depended on the Assessment Centre exercise on 29 June, the Tribunal had the memorandum of Ms McGurk.
28. For all those reasons we can see no error of law in the Tribunal's approach and we must dismiss this appeal.