Deman v Association of University Teachers [2003] EWCA Civ 329

Case No A1/2002/1022[2003] EWCA Civ 329
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL (LINDSAY J)
Venue Royal Courts of JusticeDate Friday 14 March 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE POTTERLORD JUSTICE TUCKEYMR JUSTICE WALL
Between
DEMANAppellantASSOCIATION OF UNIVERSITY TEACHERSRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr John Davies (instructed by Kirk Partners) for appellantMr Thomas Linden (instructed by Patterson & Brewer) for respondent
JudgmentAs Approved by the CourtCrown Copyright ©

Introduction

[1]This is the judgment of the court.[2]This is an appeal, brought with permission granted by Mummery LJ on 1 November 2002, from a decision of the Employment Appeal Tribunal (“EAT”) presided over by Lindsay J on 22 April 2002. By that decision the EAT dismissed the appeal of Dr Suressh Deman (the appellant) from the decision of the London (North) Employment Tribunal (ET) dated 23 April 1999 (Chairman: Mr P R K Menon) which had dismissed his claims of race discrimination and victimisation made against the Association of University Teachers (“AUT”). Those claims arose out of the alleged discrimination by AUT contained in two Originating Applications presented by the appellant against AUT as first respondent, and the following individuals namely: i) Dr David Triesman who at all material times was the AUT General Secretary, ii) Mr Brian Everett, the AUT Assistant General Secretary who, over the material time period 1994–1996 was the AUT regional official with responsibility for Northern Ireland; iii) Dr Geoffrey Talbot, who was at the material time the secretary to the AUT Legal Aid Standing Committee (“LASC”) which heard appeals against decisions made by its Legal Aid Committee (“LAC”); and iv) Dr Joanna De Groot, a lecturer at York University, a member of the AUT National Executive Committee (“NEC”) and the President of the AUT during 1996-97.[3]The appellant is a United States citizen of Indian/Hindu origins. From 14 February 1994 until 30 September 1995 when his employment was terminated, the appellant was a probationary lecturer in the Accountancy and Finance Department of Queen’s University, Belfast (“QUB”). In October 1994, he became a member of the QUB branch of the AUT of which the President was at all material times Dr Duncan Mercer who was also the secretary of the QUB Senior Common Room (“SCR”).[4]From March 1995 onwards, the appellant complained of race discrimination, victimisation and ultimately unfair dismissal against QUB. Having become a member of the QUB branch of AUT he sought to enlist the help of Dr Mercer and a Dr Jay, the secretary of the Belfast AUT at the time, in connection with his complaints.[5]The appellant was embroiled in a number of disputes with QUB. Within weeks of starting he had had photographic equipment stolen from the QUB SCR which led to a long-running dispute with, inter alia, Dr Mercer, so that Dr Mercer and other officers of the AUT local branch became hostile towards him. Later, the applicant complained about a fellow member of staff, Ms Carroll, to the effect that she was not providing him with the same quantity and quality of administrative assistance as she gave to other teaching staff in the department. Again he received what he regarded as insufficient help. He was also aggrieved by the fact that on 9 March 1995 Ms Carroll applied for membership of the QUB local AUT in order to gain their assistance in a complaint she was now making against the appellant. At that point Dr Jay ceased to assist the appellant and asked Dr Max Goldstrom, membership secretary of the QUB local AUT and honorary secretary of the National AUT to assist the applicant in order to avoid any possible conflict of interest on the part of Dr Jay.[6]Dr Goldstrom advised the appellant that in view of the religious and political situation in Northern Ireland he would be ill-advised to raise the allegation of race discrimination as such allegations might result in counter allegations being raised that he himself was guilty of sexual harassment. At the appellant’s request Dr Goldstrom agreed to seek a non-white AUT representative for him, writing to the appellant that AUT had a policy on racism, namely that it would not be tolerated but that the appellant had to produce evidence before making such serious charges. He said he hoped the matter could be settled informally but advised that, if necessary, the appellant could apply for legal aid from the AUT.[7]The applicant then wrote to Dr David Triesman, as AUT General Secretary, complaining of the handling of his complaints locally. Dr Triesman decided that Mr Everett, the AUT Regional Official based in Cheshire who had responsibility for Northern Ireland would assist the appellant with his employment dispute with QUB and that Dr Triesman would deal with his complaint against the local AUT. Mr Everett recommended obtaining a legal opinion from the senior partner of Hanna & Co, the local Belfast firm retained by AUT. However, the appellant said he would prefer to take advice from a solicitor outside Hanna & Co.[8]Contrary to Mr Everett’s advice, the applicant started employment proceedings in Northern Ireland alleging religious discrimination and victimisation against him by QUB. The appellant was dissatisfied with Mr Everett’s handling of the matter and complained to Dr Triesman. Dr Triesman advised the appellant to take advice from a partner of Hanna & Co whom he had established had not hitherto acted for or against QUB. However, after a meeting between the appellant and that partner, he was advised that Hanna & Co could no longer act for him. Dr Triesman informed him that the AUT could not provide legal assistance to him through any other firm, later informing him that he took grave offence over the appellant’s attack on the AUT.[9]In August 1995 the appellant wrote to Dr Triesman asking for AUT representation in pursuing internal remedies within QUB. Dr Triesman pointed out the difficulties of providing a representative from within QUB AUT as the appellant had dismissed the assistance of all the local AUT officers and had made allegations against Mr Everett and Hanna & Co.[10]Following further correspondence the appellant wrote to Dr Triesman in September 1995 seeking legal aid from the AUT in respect of his judicial review proceedings against the decision of QUB to terminate his employment from 30 September 1995. In October Dr Triesman put the application to the LAC whose membership included Dr Triesman, Dr Goldstrom and Dr De Groot. He recommended that the appellant’s application should not be supported. Dr Goldstrom withdrew from any participation in the deliberations of the LAC but Dr De Groot, as Chair, and Dr Triesman participated. Their reasons for refusal conveyed to the appellant included an assertion that he had been provided with assistance by the AUT Northern Ireland Solicitors but had refused to continue to receive their guidance and that the committee could see no exceptional grounds on which it would be appropriate to authorise expenditure from its budget for advice from any other firm.[11]The appellant wrote in protest to Dr Triesman about his treatment generally and the refusal of his legal aid application asking for the matter to be referred on appeal to the LASC. The appellant wrote to Dr Talbot indicating his lack of surprise at the LAC decision as some of the executive committee members had already acted against his interests “motivated by racial and/or religious prejudice”. At the end of October he lodged a complaint against the AUT with the CRE and on 19 February 1996 issued his first IT1.[12]On 1 March 1996 the LASC remitted the matter to the LAC expressing the view that “Where a member was in serious dispute with his local association, it was unfortunate that the member was then offered legal assistance only from a firm that regularly acted on behalf of the local association … There were understandable grounds why Mr Deman might have felt that there was indeed a conflict of interest.”[13]On 1 April 1996 the LAC, chaired by Dr De Groot, decided that no exceptional circumstances existed sufficient to overturn its previous decision which it re-affirmed. The appellant then appealed to the full AUT Executive Committee. Remarkably, when on 5 July 1996 that committee heard the appeal, it was chaired by Dr De Groot. The applicant and his friend, Mr McCue made submissions and were questioned by members of the committee. When they left the room, Dr Triesman remained and addressed the committee in their absence. The committee dismissed the appeal.[14]On 25 July 1996 the appellant presented his second IT1 to the Tribunal. The appellant’s complaints fell under two broad heads namely(i) the failure of the respondents to investigate his complaints of less favourable treatment by the QUB AUT and(ii) the failure to provide him with Legal Aid or legal assistance in relation to his cases of race discrimination, victimisation and unfair dismissal by QUB.

The Decision of the Employment Tribunal

[15]The Tribunal was to some extent critical of the appellant, saying that it did not find him ‘an entirely satisfactory witness’. Whilst he had grounds for distrusting the local AUT, the Tribunal was unable to see any reason for his failure to co-operate with Mr Everett in trying to resolve his grievance with the QUB. However, it was a great deal more critical of the conduct of the respondents.[16]At paragraph 17 of its decision it stated as follows:
“[Dr Goldstrom’s] advice that any allegation of race discrimination was likely, in the context of Northern Ireland, to result in a complaint of sex discrimination (harassment) against the applicant, displayed a degree of foreknowledge or prescience of coming events which would have only been gleaned from a discussion with Dr Jay who was Ms Carroll’s representative. Dr Triesman was an impressive witness but he displayed a surprising degree of naivety and ignorance as to the reality of discrimination on the shop floor. His evidence that everything was satisfactory in race terms within the AUT apart from the applicant’s complaint, displayed a surprising degree of ignorance and complacency: it does not follow from the fact that no one else had raised a racial grievance under the rules – unlike the applicant – that all ethnic minority members are happy with the state of affairs within the union. Dr Triesman should meet with and pay heed to the views of members like Dr Saha, who was a most impressive witness, who wanted to work with and not against the AUT, but who are very unhappy with the services provided by the AUT to ethnic minority members. When asked why he had not raised any internal grievance, his telling reply was, “Then I would have ended up like the Applicant”, i.e. in the Tribunal against the AUT, which is not the situation he would like to be in. Of all the respondent’s witnesses, only Mr Everett was able to demonstrate that he had an understanding of the problem.”
[17]The Tribunal found Dr De Groot to be a patronising, unreliable and evasive witness. When asked by a Member of this Tribunal as to how many members of the York University AUT were black, what the tribunal described as “her glib, evasive and unhelpful reply” was, “I don’t put labels on people”.[18]In paragraph 18 of the reasons, the following criticisms were made of named individuals.

Dr Mercer

[19]As a powerful figure both within the QUB and the local AUT he disliked the appellant, expressing in a note to Dr Brown of QUB “Here is the latest dose of rubbish from Dr Deman. I shall not even bother to reply to it.” Such views were bound to have influenced the QUB’s treatment of the appellant.

Dr Goldstrom and Mr Lynch

[20]They had discouraged the appellant from pursuing his race discrimination complaint against the QUB and Ms Carroll in a manner which was to be contrasted with the vigorous assistance which Dr Jay gave to Ms Carroll in relation to her allegation of sexual harassment by the appellant. The appellant was advised that his allegation of race discrimination would be counter-productive and provide a counter-complaint of sexual harassment from Ms Carroll and he was asked to substantiate his allegations. In contrast, Ms Carroll never at any stage really believed that she had been sexually harassed or discriminated against by the appellant and her complaint was eventually dismissed or withdrawn. Yet Dr Jay, her representative, had vigorously pursued those allegations. The speed with which Ms Carroll was given AUT membership raised questions as to whether the real reason for giving her application preferential treatment was in order to assist her in her complaint against the appellant.[21]So far as representation was concerned, the Tribunal held that the applicant had genuine concerns about Hanna & Co as lawyers to the local AUT and a genuine perception of conflict of interest arose in the light of the hostility of important figures such as Dr Mercer towards the appellant. It was difficult to understand why the AUT had insisted that the appellant accept assistance from Hanna & Co and no-one else when there was evidence from Dr Goldstrom that in other conflicts of interest (member against member) situations the AUT had relaxed the rule that assistance could only be given by Hanna & Co.[22]So far as the LAC and LASC meetings were concerned, the decision not to provide the appellant with assistance solely on the basis that he had rejected assistance from Hanna & Co was hard to understand as the AUT did not investigate the issue of conflict of interest. Furthermore, Dr De Groot should not have presided at the EC Appeal Hearing on 5 July 1996. She was presiding over an appeal against a decision to which she had been a party. Further Dr Triesman should not have stayed behind after the appellant was asked to leave nor have been permitted to make any submissions in the appellant’s absence either as an LAC member, in the light of the immediate past history, or because of the fact that he was clearly going to recommend that Legal Aid should not be granted to the appellant. The presence of Dr De Groot and Dr Triesman, the two most powerful officer holders would have inhibited the other members. Everything gave the appearance that Dr De Groot wished to control the outcome of the matter and justice was not seen to be done.[23]Finally, the Tribunal criticised the fact that no notes were taken of these important meetings which was not consistent with an organisation operating proper equal opportunities procedures. It also observed that there was no effective race monitoring of the decisions of the LAC and LASC.[24]In the light of those matters, the reasons of the Tribunal in rejecting the complaints of the appellant were remarkably brief. The concluding paragraphs of the decision read as follows. “19. The picture that emerges is one of incompetence and cutting corners rather than any conspiracy as far as the national officials and officers were concerned. Nevertheless, the fact remains that the national AUT should have investigated the applicant’s complaint against the QUB local AUT. It has to be said that the applicant could have been more co-operative with Mr Everett and Dr Triesman.20. In the light of our findings, the Tribunal gave careful consideration to the issue as to whether the AUT and the other Respondents had discriminated against the Applicant on racial grounds or victimised him contrary to the provisions of the 1976 Act. There is prima facie evidence of less favourable treatment of the Applicant vis-à-vis Ms Carroll by the QUB local AUT (not by Mr Everett or Dr Triesman). However, the complaint is not against the QUB local AUT or its officers (in any event this Tribunal does not have jurisdiction over alleged acts of discrimination which might or might not have occurred at the material time). We also find that despite his advice to the Applicant not to proceed with the race discrimination allegations – which was given on tactical grounds – Dr Goldstrom, given his background, would not consciously have been a party to any act of race discrimination against the Applicant.21. Although this Tribunal has reservations about the AUT’s failure to investigate and about the manner in which the Applicant’s Legal Aid application was handled by the AUT and its officials, the Tribunal is unable to find any evidence from which an inference of race discrimination or victimisation could be drawn against the Respondents.22. It is the Tribunal’s unanimous decision that the Applicant’s complaints of race discrimination and victimisation under sections 1(1)(a), 1 and 11 of the 1976 Act against all the Respondents fail and those complaints are dismissed.”

The Grounds of the Appeal

[25]Mr. John Davies, for the appellant, advanced four grounds of appeal. As drafted, they were addressed to errors of law said to have been committed by the EAT. However, as was explained by Mummery LJ when giving permission to appeal in the instant case, the real question for this court is whether there is any error of law in the decision of ET. Thus refined, the complaints made are straightforward, and can be reduced to three: - i) the ET did not give sufficient (or any) reasons for its conclusion that the Appellant’s claims failed; ii) the ET erred in law in holding that there was no evidence from which an inference of racial discrimination or victimisation could be drawn; and iii) the ET had erroneously failed to consider unconscious racial discrimination and/or victimisation but had only looked for conscious discrimination

Jurisdiction

[26]The Race Relations Act 1976 does not apply in Northern Ireland: see section 80(2). Accordingly, the London North ET did not have jurisdiction in relation to alleged acts of race discrimination and / or harassment which occurred in Northern Ireland. The events of which the appellant complained in his two Forms IT1 in the instant case, which we have identified in paragraphs 9 to 14 of this judgment, relate to the conduct of the AUT and its officers in England. Inevitably, however, there is a substantial degree of overlap in the evidence, and events in Northern Ireland clearly provide the backdrop for the appellant’s complaints against the AUT and its officers in England. Sensibly, we think, the ET did not seek to exclude evidence relating to events which had occurred in Northern Ireland, although it may be – judging from the length of the hearing (10 days) and what we were told by Mr. Linden – that the Tribunal may not have acted as vigorously as it might have done in excluding irrelevant evidence.

Analysis

[27]We approach the ET’s decision in this case by looking first at the guidance which this court and the EAT have given to Tribunals dealing with cases of race discrimination and victimisation. What has been described as the classic exegesis is contained in the judgment of Neill LJ in King v Great Britain-China Centre [1992] ICR 516 at 528-9. That passage has been cited on numerous occasions, and we do not need to set it out. Without derogating form its value taken as a whole, it is, we think, sufficient to extract from it the following propositions which are relevant to the instant case: - i) that it is unusual to find direct evidence of racial discrimination; that few employers will be prepared to admit such discrimination even to themselves and that discrimination in some cases will not be ill-intentioned; ii) as a consequence the outcome of the case will usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal; iii) at the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.[28]The guidance given by Neill LJ in King v Great Britain-China Centre was helpfully expanded by Mummery J (as he then was) as President of the EAT in Qureshi v Victoria University of Manchester now reported at [2001] ICR 863 at 873-876. The passage is well known and is set out in full in the decision of this court in Anya v University of Oxford and another [2001] ICR 847 at 852-855.[29]Once again, for our purposes, it is only necessary to rehearse a few of the salient features identified in the judgment of Mummery J. He stresses the importance of clear findings of fact, and sets out in detail the issues upon which such findings are required. He emphasises the need to concentrate on the relevant issues. On the drawing of inferences, he cites a passage from the judgment of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124, 129 paragraph 43:[30]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.[31]Mummery J goes on to stress that, having found the primary facts from which they will be asked to draw inferences, it is the Tribunal’s function 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 IT1s were on “racial grounds”. He identifies the process of inference in the following terms: -[32]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 form 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.

Conscious and Unconscious Race Discrimination

[33]The decision of the ET in this case was promulgated on 23 April 1999. On 15 July 1999, the House of Lords decided the case of Nagarajan v London Regional Transport [1999] IRLR 572. The House, by a majority, reversed the decision of this court, which had held that, on a true construction of section 2(1) of the Race Relations Act 1976, a person alleged to have been victimised had to establish that the alleged discriminator, in treating him less favourably than another, had a motive which was consciously connected with the race relations legislation. The House held that there was no good reason for adopting a different approach in cases of victimisation from that adopted in cases of discrimination. Subconscious motivation was sufficient for either.[34]In paragraph 20 of its reasons in the instant case, the Tribunal comments that “Dr. Goldstom, given his background, would not consciously have been a party to any act of race discrimination against the (appellant)”. On any view, this is a curious and ambiguous observation, but Mr. Davies relies upon it as evidence that the ET applied the wrong test; not least because, as at 23 April 1999 (as a result of the decision of this court in Nagarajan) the law was that, whereas acts of discrimination could be unconscious, acts of victimisation required a conscious motivation on the part of the discriminator. Mr. Davies argued, accordingly, that the reference to Dr. Goldstrom’s conscious motivation in relation to issues of discrimination demonstrated that the ET had failed to consider unconscious motivation. We think there is force in that point.

The Argument on Reasons

[35]Having found the relevant facts, and having drawn or declined to draw the relevant inferences, the ET was under a duty to give reasons for doing so. Mr. Davies argued that the Tribunal’s reasons are wholly inadequate. Again, the argument on this issue went over some very familiar ground. Mr. Thomas Linden, for the Respondents, relied heavily on the classic exposition of the extent of the duty owed by Employment Tribunals to give reasons set out by Bingham LJ (as he then was) in the decision of this court in Meek v City of Birmingham District Council [1987] IRLR 250 at 251 and the importation into that judgment of passages from judgments given by Donaldson LJ in Ucatt v Brain [1981] IRLR 225 at 227, Alexander Machinery (Dudley) Ltd v Crabtree [1974] IRLR 56 and the same judge when Master of the Rolls in Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 at 202.[36]Mr. Linden also referred us to the decision of this court in Miriki v Bar Council [2002] ICR 505 at 520 where Peter Gibson LJ pointed out that whilst many decisions are of a standard of which any professional judge would be proud, the chairman of a tribunal, although a lawyer, was not a professional judge, and that it would be incorrect to require such a standard of all tribunal decisions. He also relied upon a later dictum in the same judgment, in which Peter Gibson LJ said: -[37]Each case must be decided in the light of own particular circumstances. It cannot be right that in every case the tribunal must make express findings on every piece of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint.[38]Mr. Linden submitted that, judged by these standards, the reasons given by the Tribunal were adequate.[39]For the appellant, Mr. Davies placed considerable weight on the decision of this court in Anya v Oxford University and Another [2001] ICR 847, which he described as “seminal”, albeit that the judgment was handed down on 22 March 2001 just under two years after the decision of the ET in the instant case. Mr. Davies also criticised the absence of any mention of the case in the EAT’s decision, which was sent to the parties on 1 May 2002[40]Whilst in no sense wishing to detract from the importance of the decision of this court in Anya, we do not think it has the panacean qualities Mr. Davies claimed for it, nor do we see it as breaking any new ground. The extensive citations contained within the judgment of the court from the well established decisions of King v Great Britain-China Centre and Qureshi v Victoria University of Manchester are illustrative of its mainstream credentials. Following Qureshi in particular, it rightly emphasises the need for clear findings of fact and the careful evaluation of inconsistencies in the evidence. It cites a decision of Morison J sitting as Chairman of the EAT in Tchoula v Netto Foodstores Ltd (unreported) which is in the following terms: -[41]A bald statement saying that X’s evidence was preferred to Y’s is, we think, both implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely that there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons.’[42]We respectfully agree with Morison J’s observations in this passage, and with this court’s consequential comment that: -[43]It is the job of the tribunal of first instance not simply to set out the relevant evidential issues as this industrial tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent they become otiose; and if they do become otiose, the tribunal needs to say why.[44]It seems to us that any variation in emphasis discernible in the authorities referred to paragraphs 31 and 35 above, is no more than a reflection of the practical difference in the task of the Tribunal as between cases of unfair dismissal on the one hand and racial discrimination and victimisation on the other. In the former, having established the facts, the assessment of the fairness or unfairness of the dismissal generally depends on applying objective norms and accepted standards of fairness in the field of employment rather than assessing nuances and drawing inferences as to the “true” motivation underlying particular actions or a course of events in respect of which more or less plausible reasons consistent with non-discrimination are advanced in answer to the allegations made. The latter type of case will usually involve the necessity for a more careful and elaborate statement of reasons than the former if the Tribunal is to fulfil the parties’ entitlement to be told why they have won or lost with a sufficient statement of the reasoning to enable the EAT or this court to know that the Tribunal has made no error of law in coming to its conclusion.[45]Against the criteria we have identified, we have reluctantly come to the conclusion that the ET’s decision is deficient in a number of material respects; that this appeal must accordingly be allowed; and that the appellant’s complaints must be remitted to a fresh Tribunal for re-hearing. Our regret stems from the fact that the appellant’s forms IT1 were issued respectively in February and July 1996 and related to events before those two dates; that the hearing in the ET, which lasted 10 days, took place more than four years ago, and that by the time the matter is reheard in the ET it will be late 2003 or early 2004. We also understand from counsel that the appellant’s claim in Northern Ireland for unfair dismissal against QUB is still outstanding, and that a hearing date has not been fixed.[46]In our judgment, the first and most obvious criticism of the ET’s decision is the assertion in paragraph 21 of the reasons that “the Tribunal is unable to find any evidence from which an inference of race discrimination or victimisation could be drawn against the Respondents”. That is manifestly incorrect. The findings made in paragraphs 17 and 18 of the reasons (recorded at paragraph 16 onwards of this judgment) provide abundant material, in our view, from which inferences of discrimination could properly be drawn. “Could”, of course, is the operative word. It is for the Tribunal, who heard and saw the witnesses to assess their credibility and their motivation. It is for this reason that an analysis of the evidence, and the provision of reasons explaining why inferences have or have not been drawn, is so important.[47]The EAT regarded the appellant’s attack on paragraph 21 of the ET’s reasons as “little more than a quibble”. It said:
“The Tribunal was surely saying that looking at the evidence as a whole, including that which it accepted as to incompetence and corner cutting, there was nothing left which was unaccounted for on those grounds from which the inference can be drawn. That is not a conclusion which, as to the first two key events, we can say was in error of law.”
[48]That analysis was, of course, enthusiastically adopted by counsel for the Respondent in this appeal. With great respect, however, we are unable to accept it. Bearing in mind, as we do, the caution given by Peter Gibson LJ in Miriki v Bar Council cited at paragraph 32 of this judgment, that the Chairman, whilst a lawyer is not a full time judge, there is, we suggest, a very substantial difference between, on the one hand, there being no evidence from which inferences of race discrimination or victimisation can properly be drawn; and, on the other a situation in which there was evidence from which such inferences could properly be drawn, but where the Tribunal had come to the conclusion that it was not appropriate to draw them. To give paragraph 21 of the ET’s reasons the interpretation which the EAT gave it is, in our judgment, impermissibly to re-write them.[49]Even if paragraph 21 is given the meaning the EAT ascribed to it, the mischief, in our judgment, is not cured. If what the Tribunal was saying was that there was evidence from which inferences could properly be drawn, it was under a clear obligation to explain fully why it had decided not to draw them. In other words, it had to give reasons for its decision.[50]In our judgment, the only reason the Tribunal gives is contained in the phrase in paragraph 19 of the reasons:
“The picture that emerges is one of incompetence and cutting corners rather than any conspiracy as far as the national officials were concerned”
. It is far from clear to what particular matters this portmanteau phraseology was addressed. Leaving on one side whether or not the appellant’s case was that such a conspiracy existed, the identification of “incompetence and cutting corners” is, in our judgment a manifestly inadequate analysis of the material contained in paragraphs 17 and 18 of the Tribunal’s reasons, which we have recorded earlier in this judgment.[51]A few examples will suffice to make the point. Paragraph 17 makes a number of findings directly related to issues of racial awareness. Dr. Triesman, despite being “an impressive witness” displayed a “surprising degree of naiveté and ignorance as to the reality of discrimination on the shop floor” . His belief that all was well in race terms within the AUT showed “a surprising degree of ignorance and complacence”. Dr Triesman needed to “meet with and pay heed to the views of members like Dr. Saha, who was a most impressive witness, who wanted to work with and not against the AUT but who are very unhappy with the services provided by the AUT to ethnic minority members”. Dr. Saha had been asked why he had not raised any internal grievance. His “telling reply” was that he would have ended up like the appellant.[52]In relation to Dr. de Groot, she was asked a specific question about the numbers of black members of the AUT at her university. Her reply was “I don’t put labels on people”, a response described by the Tribunal as “glib, evasive and unhelpful”.[53]A disinterested reading of paragraph 17 of the Tribunal’s reasons immediately raises a number of questions. All was plainly not well in racial terms within the AUT. There was discrimination on the shop floor. There was unhappiness amongst the ethnic minority members about the services the AUT provided to them. Amongst senior members of the union there was complacency and ignorance on Dr. Triesman’s part, and unhelpful evasion from Dr. De Groot. One obvious inference to be drawn from these findings was that Dr Triesman and Dr. De Groot were guilty of conscious or unconscious racial discrimination. If the Tribunal was not going to draw such an inference, it needed to set out its reasons for not doing so.[54]In our judgment, the need for full reasons is all the more compelling when the behaviour of the AUT and its senior officials was so extraordinary. We are conscious that Dr De Groot is not a lawyer, but somebody in the appellant’s position can, we think, reasonably expect an intelligent academic to have an elementary grasp of the rules of natural justice, and if such a grasp is not demonstrated to ask why. If , as may well be, the reference to “cutting corners” was directed to the conduct of Dr De Groot and her ubiquity in relation to the legal aid decisions of the AUT, it is in our view inapt to describe her behaviour. The evidence demonstrated a highly focused determination to get her own way which is far removed from incompetence. It may well be that her motivation and behaviour had nothing to do with conscious or unconscious racial discrimination towards, or victimisation of the appellant, but the findings of fact about her plainly required that issue to be fully and properly addressed.[55]We do not think it necessary to proliferate examples, not would it be right to do so, given that the matter must be remitted to a fresh Tribunal to be reheard. It may be, however, that the Tribunal was at least in part led into error by its apparent consideration only of conscious race discrimination. Had it focused on paragraph 17 and addressed the issues of unconscious discrimination in relation to its findings in that paragraph, it is at least possible that it might have reached a different conclusion.[56]It follows, in our judgment, that the setting out of the Tribunal’s reasons fall substantially below the standard set by Meek v Birmingham City Council and the subsequent cases, including Anya, and for this reason alone, its decision cannot stand. In our judgment, however, all three grounds of appeal identified in paragraph 23 of this judgment are made out.

Case Management

[57]In his able submissions, to which we have not, perhaps paid adequate tribute, Mr. Linden, for the Respondents, invited us to dismiss the appeal so far as Dr. Triesman and Mr. Everett were concerned, as they had been vindicated by the ET, and should not be required to be parties to any re-hearing we might otherwise direct. He also asked us to give clear case management directions to ensure that any re-hearing was kept within proper limits, in particular bearing in mind the need to concentrate upon the restricted nature of the acts of discrimination/victimisation alleged against the AUT within the United Kingdom as opposed to complaints of discrimination in relation to his employment in Northern Ireland which are the subject of proceedings there which have yet to be heard.[58]We are sympathetic to this request, but do not think it appropriate for this court to lay down who should or who should not be parties to the re-hearing. We certainly could not, we think, dismiss the appeal against Dr. Triesman in the light of our decision.[59]We take the view that case management must be a matter for the Chair of the ET allocated to take the re-hearing. We do, however, think that we can assist to the following extent. We think it essential that the appellant, preferably with Mr. Davies’ assistance, should within 28 days from the date of this judgment set out in clear and succinct terms the allegations he is making against the AUT and the evidence upon which he proposes to rely at the re-hearing. The AUT should respond within 28 days of receipt of the appellant’s statement of case. The matter should be listed for a case management conference before the Tribunal Chairman allocated to hear the case on the first open date after two months from the date this judgment is handed down, with the lawyers for both sides to attend. The parties should agree the likely length of that hearing which may take up to one day. At the case management conference the Chairman will be able to give clear and tight directions designed to keep the issues within proper limits and to enable the case to be heard as quickly as possible.[60]We simply add this final comment. The mere fact that a claim involves allegations of race discrimination or victimisation is not a licence to allow irrelevant issues to be introduced and litigated for fear of the Tribunal itself being accused of discrimination or bias. Indeed, in a subject as emotive as race discrimination and victimisation it is all the more important that parties know exactly what the allegations are, and the evidence which is being advanced in support of and opposition to them. There are clear indications that in the ET in this case a substantial amount of immaterial evidence was admitted. That must not be allowed to happen on the re-hearing.

Conclusion

[61]The appeal will be allowed; the decision of the ET will be set aside; and a fresh hearing ordered before a differently constituted Tribunal. We also make the directions set out in paragraph 59.

ORDER

Appeal allowed with costs, to be assessed in accordance with the Legal Fund Regulations. (Order not part of approved judgment)

Cited in 14 later judgments

and 5 more of the most senior