APPEARANCES
| For the Appellant |
MR JOHN HORAN
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme |
| |
|
HIS HONOUR JUDGE J McMULLEN QC
- This case is about sex discrimination, race discrimination and victimisation. The judgment represents the views of all three members. We refer to the parties as applicant and respondent. We have now carefully pre-read the papers in preparation for three listings of this hearing, having granted adjournments on previous occasions at the applicant's request or because she failed to attend on time. As will become clear, this has been an advantage to her, and to us, in that it has enabled the applicant to have access to the advice of Mr Horan, appearing under the aegis of the ELAAS Scheme. We are grateful to him for his careful presentation and consideration of the issues.
Introduction
- It is an appeal by the applicant in proceedings against a reserved decision of an Employment Tribunal sitting over 15 days in 2001 at London South, Chairman, Mr John Warren, registered with extended reasons on 25 September 2001. The applicant represented herself. She had previously been represented by solicitors, who submitted her originating applications. The Tribunal noted that the applicant was familiar with the preparation of legal proceedings by virtue of her job and her experience. The respondent was represented by Counsel. Both parties made written closing submissions as advised at the outset of the hearing. These form part of the Employment Tribunal decision as incorporated into it.
- The applicant claimed sex and race discrimination, and victimisation under both statutes in four originating applications presented over 12 months starting in February 2000. The respondent denied the claims.
The Issues
- The issues were defined by the Employment Tribunal in paragraph 8(i) to (xxx) which together with additional issues, amounted to 37 different decisions to be made by it.
The Legislation
- The relevant provisions of the legislation are set out in paragraphs 6 to 7 of the Employment Tribunal's reasons and they are, the Sex Discrimination Act 1975 Sections 1(1), 4, 6(1), and 6(2) and the Race Relations Act sections 1(a), 2(1) and 4.
The Decision
- The Employment Tribunal dismissed every complaint in a decision running to 61 pages. It contains detailed reasoning which is almost impenetrable by reason of the software used for numbering the paragraphs so that one turns, for example, to paragraph 30 (liii) or 17 (mmmmmmm), indicating that the system has had to use 7 turns around the alphabet. In a decision as long as this, we would recommend that Employment Tribunals pay attention to the words of the Master of the Rolls and take out Latin numeration, and institute sequential Arabic numbering for its paragraphs and sub-paragraphs or alternatively adopt the hierarchical formula used in every statute.
The Appeal
- In her Notice of Appeal the applicant appealed against most of the findings. The Notice runs for 13 pages. Of the 37 decisions she challenges all but 5 or 6. She also alleged bias, or more accurately, apparent bias, by the Chairman and by the Tribunal as a whole. Today, the applicant relies expressly and solely on two grounds which have been advanced in a Skeleton Argument presented on her behalf by Mr Horan.
EAT Directions
- Directions in this appeal were given in Chambers by the Registrar for the pursuit of the applicant's complaint of bias. She submitted an affidavit. It was sent to the Chairman. He commented. The applicant submitted a revised affidavit and an affidavit which sought to reply to the Chairman. The Registrar ruled that the original affidavit should stand. The affidavit is of 11 pages; the Chairman's comments, 9 pages. By way of a Skeleton Argument presented on the previous hearing of this case, which was adjourned from last week, the applicant submitted further comments. We read them. Those matters need be taken no further.
The Parties
- The respondent is a State authority which collects revenue. The applicant is a British citizen of Nigerian origin. She was employed by the respondent as a casual worker in 1996. She is, at the time of the latest proceedings, in Band 4 in the Enforcement and Fraud Division of the respondent. At the time of most of the matters, beginning in March 1999, she was employed in the solicitors' department. The complaints in this case extend roughly over 2 years from March 1999.
Tribunal Findings
- The Tribunal organised the presentation of the reasons as follows:-
1. A rehearsal of the issues.
2. Pleading and procedural points
3. Findings of fact
4. The Law
5. Discussion of what would be a Protected Act
6. A complaint by complaint analysis, as Mr Horan puts it in his Skeleton, of the applicant's complaints.
7. Lessons learned.
- It is important to note that at the outset the Tribunal had set out the issues upon which it was to descend. Each derives from one or other of the originating applications. They have been organised in a form from which the Tribunal was able to make findings of fact and then to draw conclusions in relation to the complaint.
Directions
- The Employment Tribunal directed itself by reference to the relevant provisions of the Race Relations Act 1976, the Sex Discrimination Act 1975, the Employment Tribunal Rules of Procedure 2001 and what we hold to be the leading authorities, which are cited in its extended reasons, namely, King v Great Britain-China Centre [1992] ICR 516, Glasgow City Council v Zafar [1998] ICR 120, Nagarajan v London Regional Transport [1999] ICR 877 and Anya v University of Oxford [2001] ICR 847.
The Applicant's Case
- As argued today, the Tribunal made two substantial errors of law. First, there is no analysis of the general complaint made by the applicant in her witness statement but simply of the individual complaints. The Employment Tribunal should, as Mr Horan put it, "have taken a view of the big picture." Its concluding paragraph is not such a view. Further, the Employment Tribunal did not refer to the questionnaire served pursuant to statute. Yet the written submissions of the parties did not include any reference to this. Page 54 of the bundle before us includes a reference to the ethnic and gender breakdown of those persons engaged in investigating or hearing the applicant's complaints internally. The applicant has instructed Mr Horan that she took the Tribunal, through the statistics of the ethnic breakdown. It does not appear to be raised in the grounds of appeal which she submitted and does not emerge in the written arguments expressly or in the findings.
- It is further contended that the finding by the Tribunal that the applicant had missed the point in her complaints about the ethnic breakdown is not a sufficient finding (see page 35). It is further submitted that the Employment Tribunal dealt with the case as one of credibility, that is, it asked itself "do we believe the applicant or not?" And having decided it did not, found against her claims, as appropriate, of race or sex discrimination and victimisation.
- In making that submission, Mr Horan acknowledges that there is no blanket finding, such as was condemned by the Court of Appeal in Anya (above), and it is right that the correct approach in sex discrimination cases is not to advance reasoning based upon credit but to look at matters objectively and cogently.
- The second ground of appeal is that the Tribunal decided that there was no evidence in respect of a particular point and yet the applicant had submitted an originating application on it. The point is recorded at paragraph 12 where the Tribunal says:-
"The additional claim which was allowed to be addressed by way of amendment was struck out by the Tribunal after the Applicant had completed her evidence as the Applicant had led no evidence in chief whatsoever to support that claim. The claim listed above at 8(xxx) was similarly dismissed as no evidence was called to support it."
- It was contended that since the applicant had raised the matter in an originating application the Tribunal had erred in discounting that as "evidence" and in the absence of authority it was reasonably arguable for the purposes of a full hearing that there was an error of law.
The legal principles
- We accept that the approach to a claim of race discrimination and sex discrimination is that enjoined in Anya and in Qureshi v Victoria University of Manchester [2001] ICR 863 Note. Qureshi was cited extensively in Anya.
- It is important to understand what was being required by Mr Justice Mummery in Qureshi and we have been helpfully referred to the extract from Harvey at paragraph 969.01
"It must be remembered that in the Qureshi case two substantive issues apparently were being advanced on behalf of Dr Qureshi relating to a failure twice to promote him."
- To support the claim of race discrimination in respect of those two decisions, the applicant drew upon up to 44 separate instances. Mr Justice Mummery described these as the evidentiary facts. The approach which must be followed is at page 875 to 876E:-
"Inferences
The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. In Chapman v Simon [1994] IRLR 124, 129, para 43 Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences. He said:
"Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion." (See also Balcombe LJ, at p 128 , para 33(3).)
In the present case, it was necessary for the tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the tribunal to find the primary facts about those allegations. It was not, however, necessary for the tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds". The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.
The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also forms an important part of the process of inference. The tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.
Conclusion
The additional comments are intended to provide some assistance to the tribunal to whom this case is remitted (and to other tribunals) in deciding what are, in our view, the most difficult kind of cases which industrial tribunals have to decide. The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The applicant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing. The accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others. In our experience, the industrial tribunals discharge this delicate, difficult function conscientiously and carefully. It should not be regarded as a criticism of the chairman and members of this industrial tribunal that we have found its lengthy, conscientious and detailed decision, taken after many hearing days and many hours of deliberation, to contain an error of law."
- Similarly, in Anya, the applicant there complained of race discrimination in a failure by the respondent to award him a particular position and, again, other facts were drawn in in order to assist in the understanding of the complaint and of the actions of the respondent complained of. Thus, as Mr Horan accepts, a distinction is to be drawn between the substantive issues and evidentiary matters.
- In the instant case, there really were no evidentiary matters since the applicant had been allowed, by way of preliminary decision, or decision during the hearing, to rely on over 30 events, as constituting each one in itself, a complaint of discrimination or victimisation. As we have cited from Mr Horan's Skeleton it is a complaint by complaint analysis.
- Thus, the Tribunal was bound, having identified the issues, to make findings on the issues of primary fact, to draw inferences and to make a determination on each one as to whether it constituted an unlawful act. The Tribunal was not focussing on one or two substantive acts, the subject of an originating application made within time and looking by way of background evidence at other events, pre and post the substantive acts. On the contrary, this Tribunal was specifically tasked to look at the applicant's complaints and to make a decision on each one. It is to be noted that this Tribunal did accept arguments in the applicant's favour as to the bringing of all these issues within scope. In other words, it acknowledged that the applicant, for almost all of them, was within time, either by the exercise of its discretion or by the depiction of the matters as being continuing acts.
- So, the approach in principle, in Anya and Qureshi has to be modified when, as here, each individual event is to be regarded as a separate complaint. Nevertheless, it is also appropriate for an Employment Tribunal pursuant to Anya and Qureshi to look holistically at the events and that is how Mr Horan comes to the submission of a "big picture".
- It is easy to see when the Tribunal is engaged upon the examination of purely evidentiary matters, why it must stop short of making a decision on the substance of such evidentiary matters. The parties are not prepared for a full dispute on each of these issues which may date back a long period of time before the substantive issue. Thus, the Tribunal must make findings of primary fact, but stop short of making a decision under the statute as to less favourable treatment by way of race or sex, or victimisation. In our case, there is less justification for that criticism since, as we have indicated, each complaint is free-standing in its own right.
- Nevertheless the Tribunal directed itself that it should look more broadly, for it said, at paragraph 21:-
"In making their decision the Tribunal found the primary facts, and looked at indicators from a time before and after the particular incidents complained of which may … demonstrate that an ostensibly fair minded decision was or was not affected by racial bias. The Tribunal looked at each individual circumstance on its own and as part of the whole."
- In doing that, the Tribunal will have had in mind the failure of the applicant to prove any of the substantive complaints which she made and, it is to be noted, in her grounds of appeal, she did not herself challenge every single finding against her. The principles to be applied to the case therefore include those set out in the authorities which we have cited.
- As to ground 2, Mr Horan was able to put no authority before us but we invited him to consider Mensah and East Hertfordshire NHS Trust [1998] IRLR 531, where in the judgment of Lord Justice Peter Gibson, with whom the other members of the Court of Appeal agreed, at paragraph 16 there is a discussion of what was then Rule 9(3) and now Rule 11(3). This Rule entitles a Tribunal to dismiss an originating application if the applicant or his or her representative fails to attend at the relevant time. But before doing so it must consider the originating application. In Mrs Mensah's case, it was contended that the Tribunal should have allowed her to raise an argument on one particular event. Lord Justice Peter Gibson said this:-
"It was for her to prove that she had been relevantly discriminated against and that would require evidence. In the absence of her or a representative for her, as no evidence had been proffered by her on the … point, the industrial tribunal would have been bound to dismiss her complaint."
It seems that the Court of Appeal had in mind that the mere consideration of an originating application does not constitute evidence.
Application of the principles
- In our judgment the Employment Tribunal discharged its duty to make appropriate findings on the relevant issues. It has taken a complaint by complaint approach because that is what the originating applications sought and it is how the Tribunal defined the issues in the presence of the parties so that all can understand the full reasoning behind its decision. In the circumstances of this case, it was not an error of law, indeed it was the duty of the Tribunal to go through each complaint, make primary findings, draw inferences and make a decision as to whether or not it constituted an unlawful act.
- It did so with great care. In respect of each of the numbered complaints we are satisfied that it reached a conclusion which was open to it, sometimes with more, sometimes less force, but in each case, properly made on the basis of the evidence, the submissions and the inferences appropriately drawn. In respect of slightly broader issues, the Tribunal included at the end of its Roman numeral paragraphs, a number of other decisions none of which we regard as constituting an error of law.
- Was it under a duty to stand back and look at the big picture? In our judgment, it was not, since, as we have attempted to show, this case differed in the circumstances of Anya and Qureshi. However, the Tribunal told the parties that it was going to look at each complaint on its own and as part of the whole. In our view, it has done just that. In respect of each complaint it has carefully weighed the evidence looking at it on its own and in the light of the other complaints. In any event, in paragraph 34 the Tribunal concludes as follows:-
"The Tribunal has of course the benefit of hindsight and has had the opportunity of looking at the situation since March 1999. This case should never have come to the Tribunal."
- That is a reflection with the benefit of hindsight, looking at the whole of the sequence of events since they began in March 1999 and ending almost two years later. The Tribunal is to be acquitted of the charge, if it were properly made and it is not, of having failed to look more broadly at the issues raised. We dismiss the substantive Ground 1 as advanced by Mr Horan in his Skeleton Argument.
- He submitted that there was no reference to the questionnaire and the statistics. The Tribunal held that the applicant had missed the point about this matter, for it quoted her statement as follows:-
"I have no problems with these investigators as persons or indeed their ability and all I am asking for is for an ethnic minority among the investigators. That is simple because if I believe that part of my complaint is to do with racial discrimination, equal opportunities etc, at least an ethnic minority should be among the investigators to create a better understanding."
As to which the Tribunal found as follows:-
"The applicant appears to have missed the point that the investigation panel were merely collectors of fact to ascertain from the applicant what the actual complaints were and the facts to support the complaint. It was not the panel who were going to decide whether the complaints were going to be upheld."
- We accept that this formed a freestanding complaint against the respondent, that is, that failing to consider a diverse panel or a diverse investigation into a complaint of race or gender discrimination might itself be discriminatory.
- If that were to be advanced at this particular hearing, it would require to be identified with the others as an issue by the Tribunal. It was not and thus no finding is made about it. It is also open to the Tribunal to draw inferences from the fact that a decision adverse to the applicant was made by a panel which had no training or no experience of race relations or possibly was populated entirely of persons of one majority ethnic group. But, again, that is a matter which ought to have been the subject of an issue identified in advance and it was not, as the applicant accepted. It did not form part of either party's written submissions. The Tribunal cannot be faulted for failing to make a decision upon it.
- To understand this point better, it is sufficient to note that the respondent's answer to the questionnaire included the fact that at the top of the relevant department were three white males and one white female, all British, but that at different levels there was what might be described as a diverse group of employees, being white male, British; Asian female, Sri Lankan; Asian male, Muslim; Mediterranean male, Turkish Cypriot; and Afro-Caribbean male, Jamaican. If anything were to be made of that composition then, before the Tribunal, it ought to have been identified as an issue. Ground 1 is dismissed.
- As to Ground 2, the Tribunal was correct to form the view that no evidence had been brought by the applicant. This is not simply to describe the originating application as evidence or not evidence. As we have cited, it is clear that the amendment was treated by the Tribunal as being valid and the applicant was allowed to develop her case upon it. It must not be forgotten that amidst the many rejections of the applicant's case, the Tribunal did find in her favour on a number of her applications. This was one. She was permitted to give evidence about the amended matter, but no evidence was actually given by her, in chief, to support her claim and thus the Tribunal dismissed it on the merits.
- To say that the originating application was evidence misses that important point. The Tribunal had of course read the originating applications. It had to do so in order to set out the issues. But more is required of an applicant at the hearing than simply to set out a claim signed by her solicitors. Given the opportunity to present evidence to support the claim, if nothing is forthcoming from her, it is correct to say that she led no evidence in chief to support her claim. The Tribunal would dismiss the claim, not on a technicality by striking out or refusing to allow an amendment, but upon the merits, having heard evidence, or as it happens, no evidence.
- In order to deal, however, with Mr Horan's point on this, it is necessary to look at what was said in Mensah. In our judgment that is authority for the proposition that an originating application is not evidence. It is particularly so in this case where the originating application is not signed by the applicant. In oral argument, Mr Horan adapted his Skeleton Argument in relation to comparison with the Civil Court. He said this:-
"This is to miss the obvious point that the IT1 is itself evidence as opposed to pleadings in the High or County Court."
He accepts that since 1999 pleadings in the Civil Court are to be signed and thus they can constitute evidence. Where, however, as in the old days, pleadings were signed by Counsel, or by solicitors, they remained pleadings and not evidence. In our judgment, that remains the position in an originating application signed by solicitors. It thus follows that we dismiss Mr Horan's second ground.
- We do not consider there is any reasonable argument to be made with a prospect of success before a full hearing of the Employment Appeal Tribunal and, again, we are grateful to Mr Horan for the conscientious way in which he has presented those arguments on behalf of his client. We hope, as did the Employment Tribunal, that this matter can now be put behind the parties since the applicant continues to be in employment and that both the applicant and the respondent can get back to working on a normal basis with the long history of this matter behind them. We have already dismissed, at the opening of this case on its withdrawal, the second appeal today.
