United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WILLIAM JOSLING (of Counsel) Instructed by: Messrs Beetenson & Gibbon Solicitors Lauriston House Town Hall Square Grimsby DN31 1JB
For the Respondent	MR DAVID READE (One of Her Majesty's Counsel) Instructed by: Messrs Short Richardson & Forth Solicitors 4 Mosley Street Newcastle-upon-Tyne NE1 1DE


 


SUMMARY

RACE DISCRIMINATION – Burden of proof

The Employment Tribunal did not apply section 54A(2) of the Race Relations Act 1976. The facts upon which the Claimant relied, taken as a whole were such that the Tribunal could conclude in the absence of an adequate explanation that the Respondent refused or deliberately omitted to offer him employment on racial grounds. The Tribunal, however, failed to make findings on some matters of primary fact and failed to consider whether those facts which the Claimant established brought his case within section 54A(2).


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr Noureddine Bouzir ("the Claimant") against a judgment of the Employment Tribunal dated 19 March 2010 dismissing his claim of race discrimination against Country Style Foods Ltd ("the Respondent").
2. The Tribunal heard two closely related claims at the same time – one by the Claimant, alleging race discrimination and another by his wife alleging both race discrimination and discrimination on the grounds of religion and belief. Mrs Bouzir's claim of religious discrimination was upheld.

The background facts

3. The Respondent is in the business of food processing. It runs a bakery in Grimsby. In the summer of 2009 it decided to recruit approximately 30 additional staff for that bakery. The recruitment exercise was undertaken for the Respondent primarily by Mr Sorenson. He did not advertise, apparently because there were many unsolicited applications from which to choose.
4. The Claimant is Algerian. He practises the Muslim faith. He has worked as a chef in restaurants and takeaway food shops. At the time in question, July 2009, he was working for an agency which supplied staff to various factories in Lincolnshire, including those processing fish, sausages, chicken and chocolate. He has the right to live and work in the United Kingdom.
5. Mrs Bouzir is Latvian. She has converted to the Muslim faith. She too has the right to live and work in the United Kingdom. She too had experience of working in the food processing industry while an agency employee.
6. Mrs Bouzir had made an application to the Respondent. It would, as the Tribunal found, have set out her experience of working in the food processing industry. That, the Tribunal inferred, was why Mr Sorenson telephoned her to come for interview. During that telephone call the Claimant told Mr Sorenson that he had also made an application; Mr Sorenson said he had not seen an application, but agreed to interview him.
7. Thus the Claimant and Mrs Bouzir attended for interview on 7 July. Mr Sorenson interviewed the Claimant first. There was some discussion of his experience. He had brought documents concerning his right to work in the United Kingdom. He showed them to Mr Sorenson. Mr Sorenson arranged to have them copied; but he questioned the validity of two of them – a marriage certificate and national insurance card. The Claimant went to the police station to have them certified.
8. In the meantime Mr Sorenson interviewed Mrs Bouzir, again asking her about her past experience. She was wearing a headscarf. Mr Sorenson asked if she would be willing to take it off while at work, given that there was a hygiene requirement for operative staff to wear a hairnet. Mrs Bouzir explained that while she was a Muslim she would be prepared to remove her headscarf while working, as she had done with other jobs. As the Tribunal found, Mr Sorenson must have been serious about employing Mrs Bouzir. He informed her about attending an induction meeting on 9 July.
9. Then, however, the Claimant returned from the police station with his documents certified. He asked for the interview to be continued. Mr Sorenson did not do so. Mrs Bouzir told the Claimant that she had been invited to an induction meeting on 9 July. Mr Sorenson intervened to say that she should only attend the induction meeting if she was telephoned to do so. As the Tribunal found, he was withdrawing the requirement to attend the induction meeting about which he had told her before.
10. Neither the Claimant nor Mrs Bouzir received any telephone call. They attended on 9 July. The Claimant said, both in his claim form and in his witness statement, that he saw two groups of people, one male and one female, being given induction training. Both groups were, he said, all white (mainly Polish or other Eastern European). The Tribunal made no findings about the racial make-up of the employees who were inducted.
11. On 9 July the Claimant and Mrs Bouzir were told that they had not been successful in their applications. The Claimant asked for a letter explaining why. Mr Sorenson said it was not the Respondent's policy to provide such a letter. In fact, however, the Respondent wrote a letter of explanation, evidently dated 9 July but not received by them until 13 August. The Tribunal found that this letter was inaccurate. It made reference to successful candidates having "previous bakery experience". In fact only three out of thirty successful candidates had bakery experience.
12. The Claimant and Mrs Bouzir served statutory questionnaires on 26 August. These questionnaires asked highly material questions about the matter – especially about the vacancies available in July, the make-up of applicants and the make-up of those who were appointed. No reply was received to these questionnaires.
13. The claims of the Claimant and his wife were heard on 15 February 2010. The Tribunal heard evidence from Mr Sorenson and from the Claimant and his wife. The Respondent disclosed the nationalities of the successful applicants, but not their individual application forms or notes of interview. The Respondent did not disclose any documents relating to unsuccessful applicants, saying that it was their practice to shred such documents. Thus there were no copies available of the application forms completed by the Claimant and his wife, and no notes of interview.
14. At the hearing the Respondent's case was that neither Claimant possessed the necessary experience of working in the food-manufacturing industry.

The Tribunal's reasons relating to Mrs Bouzir

15. In its general statement of the law the Tribunal made reference to essential provisions of the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 defining direct discrimination. The Tribunal referred to the burden of proof provisions in the legislation: section 54A of the 1976 Act and reg. 29 of the 2003 Regulations. The Tribunal referred to Igen v Wong [2005] IRLR 258 for guidance as to the approach in race discrimination cases.
16. Turning to the specific case of Mrs Bouzir, the Tribunal said that it was "not impressed" with the evidence of Mr Sorenson. Where there was a difference between Mr Sorenson and Mrs Bouzir the Tribunal preferred the evidence of Mrs Bouzir.
17. The Tribunal, as we have seen, did not accept that the Claimant and Mrs Bouzir lacked the necessary experience of working in the food-manufacturing industry, and did not accept the letter dated 9 July as accurate.
18. Further, the Tribunal was highly critical of the failure of the Respondent to answer the questionnaires. It said:

"34. The Respondent's explanation for not responding to the questionnaire was that they were too busy and thought the whole matter had been settled. There is no evidence whatsoever of such. It was said that Mrs Edwards, the Personnel Manager, had understood this was the position. It is difficult to accept that any Personnel Manager who should be aware of discrimination law and procedure, would assume that the matter was settled and there was no need to answer a statutory questionnaire merely because of an understanding the matter had been concluded. It must have been clear to the Respondent that the matter had not been settled. The correspondence from the CAB on behalf of the Claimants, was conducted in August 2009. The questionnaires were sent on 20 August. The claims were submitted on 15 September 2009. Even after that date the Respondent made no attempt to answer the questionnaires.

35. This situation is compounded by the fact that the Respondent failed to reply to the Claimant' requests for copies of their application forms. It was only at the hearing in February 2010 that the explanation was given that those forms had been shredded a few days after the interview."

19. The Tribunal expressed its conclusions in paragraph 36:

"36. The Tribunal therefore concludes that, since the Respondent was so evasive in replying to the questionnaire and the request for documentation, since they relied on reasons in the letter of 9 July which they considered to be common to both Claimants and since they sought to claim that Mrs Bouzir did not have sufficient experience and because of the failure of the Respondent to produce any documentation relating to successful candidates, that the Respondent is either concealing or not admitting the true reason. The Tribunal can only conclude that, in the case of Mrs Bouzir, the reason was her Muslim religion which was clearly evidenced by her attendance at the interview wearing a headscarf."

20. Thus the claim of religious discrimination was successful. The claim of race discrimination, however, was not. The Tribunal explained why in paragraph 37:

"37. The Tribunal did not find there was any evidence of Mrs Bouzir being discriminated against on the ground of her Latvian citizenship. Many of the Respondent's other employees are Latvian. There is nothing in the Claimant's own evidence or the Respondent's evidence which would indicate that she was being treated less favourably i.e. in not being offered a position because of her Latvian origin. Accordingly the allegation of race discrimination is dismissed."

The Tribunal's reasons concerning the Claimant

21. When the Tribunal came to the case of the Claimant the hearing took an unusual turn. The Tribunal described the position in paragraph 38 and 39 of its reasons.

"38. Having looked at the evidence the Tribunal initially concluded that there appeared to be evidence supporting the claim that Mr Bouzir has been discriminated against because of his Muslim religion. However when the finding was announced Mr Wood for the Respondent pointed out that Mr Bouzir had only claimed race discrimination. An examination of the Claimants' ET1 Paragraph 5 showed that he ticked only the box relating to race. In the concluding part, Paragraph 15 of Section 5.2 of the ET1 he stated:-

'I believe I have been unlawfully directly discriminated against contrary to sections 1(1)(a) of the Race Relations Act 1976.'

He submitted a questionnaire on race discrimination only. In his witness statement he stated:-

'I believe that the reason why I was not offered the job was because of my race.'

39. In those circumstances we agreed with the Respondent that the Claimant had not submitted a claim for religious discrimination but had confined his claim to race discrimination."

22. Having reached the conclusion that there was no claim for religious discrimination, the Tribunal then dealt with the claim of race discrimination quite briefly.

"40. The Tribunal considered whether Mr Bouzir had established that there was race discrimination. The Claimant is an Algerian citizen. Although the Respondent does not employ another Algerian, there was no evidence to show that the Claimant's race was the reason why he was not offered the position.

41. The Respondent does have a policy of employing staff of many difference nationalities and there was no evidence to show either directly or by drawing inferences that the reason for the Claimant not being offered a job was his Algerian citizenship. While the Respondent did not behave particularly well in respect of its failure to communicate with the Claimant after the interview or to notify him not to attend the induction, and despite the failure to give the correct reason why he was not appointed and the failure to reply to the questionnaire, there still does not seem to be sufficient evidence to show that this was related to the Claimant's race rather than to some other reason."

The legislation

23. The Race Relations Act 1976 was the relevant legislation applicable to the race discrimination claim. It has of course now been repealed and replaced by the Equality Act 2010.
24. Section 4(1) provided:

"4(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another –

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment."

25. The definitions of direct and indirect race discrimination were found in section 1 of the Act. They are well known; it is not necessary to repeat them.
26. Section 54A(2) applied to complaints of discrimination on grounds of race or ethnic or national origins. It provided:

"54A(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

Submissions

27. On behalf of the Claimant Mr William Josling submits that the Tribunal did not consider the burden of proof provision in section 54A(2). He submits that the Claimant must have proved facts from which the Tribunal could conclude that he had been treated less favourably on grounds of race, given the conclusions which it reached in respect of Mrs Bouzir's claim. Alternatively, if it did not make such findings, it ought to have done so. He has taken us through the Claimant's case before the Tribunal in these respects. He submits that the Tribunal may have fallen into the error of supposing that there can only be one reason for a discriminatory act. He points to the language of paragraphs 40 and 41, which (he submits) appears to place a burden of proof on the Claimant without first considering where the burden of proof should lie.
28. Mr Josling then submits that the Tribunal ought to have considered, and failed to consider, whether the Respondent had discharged the burden of proof. He submits, further, that the Tribunal would have been bound, in the light of its conclusions in respect of Mrs Bouzir's claim, to conclude that the burden had not been discharged.
29. Mr Josling today has put his case fairly and squarely on the way in which the Tribunal dealt with the issue of race discrimination. It was argued in the Notice of Appeal that the Tribunal ought to have afforded the Claimant an opportunity to amend the claim form to assert religious discrimination, or that the case could be put on the basis of indirect race discrimination. Mr Josling has not pursued those arguments. We think he was right not to do so. The Claimant's claim, drafted with help, was put fairly and squarely on direct race discrimination contrary to section 1(1)(a) of the 1976 Act.
30. On behalf of the Respondent Mr Reade QC submits that the Tribunal properly considered the burden of proof provision, treating the case as one of alleged discrimination on the grounds of national origins. He points out that section 54A is correctly cited in its reasons. He submitted that the Tribunal, in paragraph 41 of its reasons, found that a prima facie case had not been made out; this was not a perverse conclusion to reach, and cannot be challenged as incorrect in law. He submitted that it could be seen, when the reasons relating to Mrs Bouzir were read carefully, that the Tribunal must have had regard to the burden of proof provisions; and that the Tribunal drew a valid distinction between the position of Mrs Bouzir and the Claimant, making important findings of fact in the case of Mrs Bouzir which did not apply to the Claimant's case. He submitted that the failure to answer a questionnaire does not automatically lead to the drawing of an inference of discriminatory conduct: D'Silva v NATFHE [2008] IRLR 412 at para 38.

Discussion and conclusions

31. Although the Tribunal referred to the burden of proof provisions of the 1976 Act and the 2003 Regulations when setting out its legal approach, there is no subsequent reference to those provisions in its reasoning.
32. Thus, for example, when dealing with Mrs Bouzir's claim, the Tribunal (in paragraph 36 which we have quoted) concluded that the Respondent was concealing or not admitting its true reason for its actions, and stated that it could "only conclude" that the reason in her case was her Muslim religion, clearly evidenced by her headscarf. It is unclear whether it reached its conclusions on the balance of probabilities by reference to the inferences it drew from the primary facts, or by reason of the application of the burden of proof provisions. Likewise, there is no express reference to the burden of proof provisions when dealing with either claim of race discrimination.
33. At this point, we think it is important to stand back and see what the Claimant's case was and how far it was established. We take his case from the claim form, his witness statement and the Tribunal's reasons.

(1) It was his case that Mr Sorenson gave him an interview, but did not complete it after he returned from the police station with his documents certified. This the Tribunal accepted.

(2) It was also his case that Mr Sorenson's reason for not completing the interview was that there was no need to carry on since he had all the facts and there was no reason not to employ him as he had better English than many of the other candidates. This is not what the Tribunal found. They found that Mr Sorenson refused to continue with the interview because there was insufficient time. This, however, was not what Mr Sorenson said in his witness statement, where he said, in effect, that the interview was over before the Claimant went to the police station. In the light of (4) below, we find it difficult to be sure whether the Tribunal rejected the Claimant's account or omitted to deal with the issue.

(3) It was the Claimant's case that he, like his wife, was never informed that he was not to be offered a job. This was common ground.

(4) It was the Claimant's case that when he attended on 9 July he saw that the people appointed and being inducted were all white, many Poles or from the Baltic States, and many not speaking English as well as him. This important point was also made in the Claimant's questionnaire, which the Respondent failed to answer. It is also noteworthy that the statements of Mr Sorenson – one of which was a specific reply to the Claimant's statement – did not address the point. The Tribunal, however, appears to have made no finding on this matter even though it had the direct evidence of the Claimant upon it and at least some information about the nationality of the successful candidates.

(5) The Respondent entirely failed to answer the Claimant's questionnaire, which expressly asked detailed questions about the make-up of applications for the vacancies and the candidates appointed. This the Tribunal accepted.

(6) The Respondent gave what was on any view an inaccurate explanation for the failure to offer the Claimant and his wife employment. This, as we understand it, the Tribunal accepted.

34. In our judgment, when the Claimant's case is set against the extremely brief reasoning given by the Tribunal, it becomes plain that the Tribunal has not properly considered or addressed the burden of proof provisions. Taken together, the points in the Claimant's case in our judgment plainly amount to material from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent refused or deliberately omitted to offer him employment on racial grounds.
35. It was, in our judgment, inadequate for the Tribunal to say, in the face of this evidence, that "there still does not seem to be sufficient evidence to show that this was related to the Claimant's race rather than to some other reason". Such a statement does not take any account of the burden of proof. Nor was it sufficient to rely on the Respondent's general policy of employing staff of many different nationalities. That is relevant background material, but no substitute for addressing the reason why Mr Sorenson deliberately did not offer employment to the Claimant on this occasion.
36. As a general proposition we accept the submission of Mr Reade that it does not automatically follow, even from a flagrant failure to answer a questionnaire, that an inference adverse to the employer must be drawn. Thus in De Silva v NATFHE [2008] UKEAT/0384/07 Underhill J said:

"38. …we have observed a tendency in discrimination cases for Respondents' failures in answering a questionnaire, or otherwise in providing information or documents, to be relied on by Claimants, and even sometimes by Tribunals, as automatically raising a presumption of discrimination. That is not the correct approach. Although failures of this kind are specified at item (7) of the "Barton guidelines" as endorsed in Igen Ltd. v. Wong [2005] ICR 931 (see at p. 957 B) as matters from which an inference can be drawn, that is only "in appropriate cases"; and the drawing of inferences from such failures – as indeed from anything else – is not a tick-box exercise. It is necessary in each case to consider whether in the particular circumstances of that case the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in the light of any explanation supplied it does in fact justify that inference. There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the Respondents did the act complained of, which in cases of direct discrimination is what the Tribunal has to decide. In such cases time and money should not be spent pursuing the point."

37. In this case, however, it is by no means self evident that the failure to answer a prompt and well-directed questionnaire had no bearing on the reason why the Respondent did the act complained of. It was a matter which required careful consideration.
38. It follows that the appeal must be allowed. The Appeal Tribunal, however, is not in a position to substitute findings of its own, particularly since the Tribunal has not itself made comprehensive findings. The matter must be remitted for re-hearing. Both counsel were inclined to submit that remission should be to a freshly constituted Tribunal. We ourselves take that view.
39. As we depart from this appeal, we draw attention to two matters.
40. Firstly, the Commission for Racial Equality Code of Practice on Racial Equality in Employment contains substantial material setting out good practice on issues of recruitment. The Respondent, if it has not already adapted its practices to take account of this material, would be well advised to do so.
41. Secondly, although there was some debate before us about the categories of racial characteristic to which section 54A would apply (contrast section 54A(1) with section 3(1)), this matter has been the subject of consideration in Chagger v Abbey National plc [2009] ICR 624 and does not directly arise in this appeal. We need say no more about it for the purposes of this appeal.