Post Office v O'Driscoll [1992] UKEAT 138_90_0904

EAT
Post Office v O'Driscoll
[1992] UKEAT 138_90_0904 · 1992-04-09
MR JUSTICE KNOX: This is an appeal by the Post Office from a unanimous decision of the Industrial Tribunal sitting at Leeds on the 15th January 1990, which was sent to the parties on the 24th January, whereby it was found that the complaint of Mr O'Driscoll, the Respondent before us, of discriminatory conduct on behalf of the Post Office, was well founded. The only relevant discrimination which is relied on, on the appeal, is that which invokes a combination of Section 1(1)(a) and 4(1)(a) of the Race Relations Act 1976, which I will call "the Act".Section 1(1)(a) of the Act provides:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a)on racial grounds he treats that other less favourably than he treats or would treat other persons;
Section 4(1)(a) provides:
"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;"
The factual context in which this arises, is that Mr O'Driscoll applied to the Post Office in August of 1989 to be employed as a part-time Postman. He passed a preliminary examination and was called for interview, and attended for that purpose, on the 7th September 1989 when he was interviewed by two persons on behalf of the Post Office, a Mrs McKenna who was from Personnel, and a Mr Button who was engaged in the line management.The complaint of racial discrimination arises out of two questions that were asked, although the exact context in which they were asked is a matter of very much greater uncertainty. What is actually held in the critical paragraphs of the Industrial Tribunal's decision on this question is contained in the paragraphs numbered 7 and 9. By way of introduction the very short paragraph 6 should be read too:
"6. Mr O'Driscoll not only had a poorly completed application form but at the interview was quiet and not particularly forthcoming.
7. A point was reached when a question was asked by Mr Button, which Mr O'Driscoll says came immediately after he had been asked about his Irish nationality, and that question was `Did he have a problem with drink?' Mr O'Driscoll said he put those two things together as being stereotyping by Mr Button of the Irish as having alcohol problems. Neither Mr O'Driscoll nor Mr Button remember exactly what happened. Mr Button's explanation is that because Mr O'Driscoll was having difficulties in coming forward with information, to try and put him at his ease, because Mr Button was a frequent visitor to Ireland and had an Irish wife, he asked Mr O'Driscoll about Guinness and then asked the question: `Do you have a problem with the drink over here?' meaning that in Mr Button's experience Guinness was not as good or as palatable in England as it was in Ireland. From that point it appears from both Mr Driscoll's evidence and Mr Button's evidence that the interview, in any event, ran down to a conclusion."I interpose a short parenthesis to state the facts connecting Mr O'Driscoll with Ireland. In paragraph 8 the Industrial Tribunal found this:
"8. Mr O'Driscoll in fact was born in Ireland but has been in the United Kingdom from the age of 6 months and has only visited Ireland infrequently the last time being when he was 13 years of age."
I turn now to the second paragraph which is critical in ascertaining what it is that the Industrial Tribunal found in fact had happened. That paragraph is numbered 9 and reads as follows:
"9. All those things are not really relevant to the principal questions we have to answer. What is really relevant is Mr Button's evidence that it was normal for him, when interviewing a person of Irish origin, to ask these questions about Guinness. It seems that whatever Mr Button's intentions there was stereotyping going on here and that in the context of the question about Mr O'Driscoll's Irish nationality, followed by questions about Guinness and then about problem with drink over here, which Mr Button admits was a poorly phrased question and one for which, during the tribunal hearing, he apologised to Mr O'Driscoll if it gave offence, coming together do show a stereotyping and certainly that is an impression that anybody looking at what was said could get."
They then drew conclusions that stereotyping could lead to an interviewee performing less well at interview than he might otherwise have done and they state their conclusion in paragraph 11:
"11. Whether or not the result in Mr O'Driscoll's case was that he got the job or that he was thrown at the interview and did less well is really irrelevant. The fact is that in the arrangements made certain questions which gave the impression of racial stereotyping were asked and the result could have been a poorer performance from that candidate of whom they were asked than a person of different racial origin and that amounts to less favourable treatment on racial grounds of that interviewee in the arrangements that were made for the purpose of determining who should be offered that employment."
We were referred to several authorities. In our view it is only necessary to refer to three briefly. In Saunders v. Richmond-Upon-Thames London Borough Council [1978] ICR 75 the issue was under the Sex Discrimination Act 1975 but it is common ground between the parties that the provisions of Sections 1(1)(a) and 6(1)(a) of that Act are indistinguishable in principle from the provisions of Section 1(1)(a) and Section 4(1)(a) of what I am calling, the Act. That was a case where a woman, a professional golfer, applied for a position as a club professional at a municipal golf course and was, in the event, turned down. She was asked a variety of questions some of which were described by Mr Justice Phillips as being ones which reflected an attitude of mind which was now proscribed, but the passage which is important for our purpose is at page 78 where Mr Justice Phillips dealt with submissions made for the Applicant. He said this:
"Mr Beloff's submission was that it was, as a matter of law, discriminatory within sections 1(1)(a) and 6(1)(a) to ask these questions. We do not agree. Assuming that the asking of questions may constitute `arrangements' within section 6(1)(a) the question whether they do must be one of fact in each case. The issue would be whether by asking the question she was, on the ground of her sex, treated less favourably than a man would be treated (section 1(1)(a)). This would involve a consideration of the circumstances in which, and the purposes for which, the question was asked. In our judgment the industrial tribunal approached the matter correctly in this way in paragraph 18 of the reasons for their decision."
and then he holds that their decision was not to be disturbed. But the material passage, in our view, is that one which I have just read which emphasises the necessity for a consideration of the circumstances in which, and the purposes for which, the offending questions, or the potentially offending questions, were asked.The second authority to which we should make reference is Brennan v. J H Dewhurst Ltd [1984] ICR 52. At page 53 one finds in Mr Justice Browne-Wilkinson's judgment the factual background, which was that a woman applied for a butcher's assistant job and was interviewed by a gentleman called Mr French. Of that interview Mr Justice Browne-Wilkinson says this of the Industrial Tribunal's findings:
"The industrial tribunal accepted the applicant's version. They held that Mr French's evidence was wholly unconvincing and was in conflict with certain other statements. The industrial tribunal in their decision say that they were satisfied, on the applicant's evidence, both from the questions asked by Mr French and his manner and demeanour at the interview, that he had no desire or intention to employ a woman as a butcher's assistant."
Against that factual background one finds the conclusion that Mr Justice Browne-Wilkinson reached on the question whether or not, in Section 6(1)(a) of the Sex Discrimination Act, here Section 4(1)(a) of the Act, the manner in which an interview is conducted with a view to the giving of employment, is capable of constituting unlawful discrimination, a point expressly left open by Phillips J in the Saunders case above. He said this:
"Secondly, it seems to us clear ....... that if the true construction of the section is such that it is not unlawful to operate, in a discriminatory way, arrangements made in a non-discriminatory way, there would be a gap in the Act. The policy of section 6 is to ensure that at all stages in applying for and obtaining employment the women is on an equal footing with a man in her ability to obtain the job. If section 6(1)(a) does not cover arrangements for the purpose of determining who should be offered employment which are operated in a discriminatory way, to that extent the plain policy of the Act would not be carried out. We accept wholly Mr Bresler's submission that it is not our function to insert into an Act of Parliament something which the Act, on its fair reading, does not contain. But when one is faced with a doubt whether the discrimination is to be found in the operation of the arrangements or in the making of the arrangements, we think it is legitimate for us to take into account the manifest policy of the Act as stated in the long title to the Act. Therefore, we think we are entitled and, indeed, bound to hold that the provisions of section 6(1)(a) are satisfied if the arrangements made for the purpose of determining who should be offered that employment operate so as to discriminate against a woman, even though they were not made with the purpose of so discriminating."
Pausing there for a moment, it was accepted very properly by Mr Meeran, who appeared for Mr O'Driscoll, that this was not a case where there was any suggestion that the arrangements made by the Post Office for the conducting of interviews in general had been arranged in such as a way as to infringe Section 4(1)(a). There is no suggestion of there being any arrangements made by the Post Office as a general practice that infringe the combination of Section 1(1)(a) and Section 4(1)(a). What this case is about is whether the way in which the interview was conducted by, in particular, Mr Button operated so as to discriminate against, not in this case of course a woman, but a person of Irish origins.Finally, we should refer to Tower Hamlets Council v. Rabin [1989] ICR 693. This was a race relations case as opposed to a Sex Discrimination Act case. At page 703 Mr

Justice Wood said this:

"It is submitted by Mr Rose that the industrial tribunal failed to identify words actually used; that the evidence does not disclose any word which could fall within the principles put forward by Balcombe L.J.; and that the tribunal failed to examine the circumstances to see if they were `appropriate circumstances.'"
That was a reference to what Lord Justice Balcombe said in Simon v. Brimham Associates [1987] ICR 596, the particular sentence being as follows:
"For my part, as a proposition of law, I am prepared to accept that, in appropriate circumstances, words or acts of discouragement can amount to treatment of the person discouraged less favourable than that given to other persons."
It seems to us on a combination of those authorities that it is important that there should be clear and precise findings of what was in fact said at an interview, where the complaint is about how the interview was conducted, and equally it is important that there should be findings in regard to the purpose for which what was said, was said.The most striking thing in this case is perhaps that the whole complaint hinges on the very close connection between two questions which in themselves, individually, are inoffensive in race relations terms. The first is, "are you of Irish nationality?" The question in fact did not need asking because Mr O'Driscoll had put it down on his application form that he was. The second question was, "do you have a problem with drink?" Those two questions individually have nothing to do with race relations legislation and although the latter is perhaps an offensive one, particularly if put quite as bluntly as I have put it, it is nevertheless not within any sort of distance of being offensive under the Race Relations Act. It is, and it is only, because of the very close collocation of the two questions that the Industrial Tribunal was able to reach the conclusion that their combination did amount to stereotyping that involved an offence under the Act. If it is that close juxtaposition that is the critical point, it is in our view absolutely vital to know whether there was anything that came between the two questions and it is in relation to that that we find that either there is not a clear finding in the two paragraphs that I have read, number 7 and 9 from the Industrial Tribunal's decision, or if there is, it is one that is in favour of the account that Mr Button gave of the way in which the question and answer went and the purpose for which he asked the questions that he did ask. His explanation was that he was only seeking to put Mr O'Driscoll, who was found not to be particularly forthcoming, at his ease, and in the course of doing that he was effectively making conversation and asking whether Mr O'Driscoll experienced the phenomenon of Guinness not tasting as good in England as it does in Ireland. That obviously is intrinsically a perfectly innocent line of enquiry and it would, in our view, be important for an Industrial Tribunal to form a view on that explanation of the purpose for which the questions were put and to make a finding on that score. In fact when one compares paragraphs 7 and 9 one does not find any such finding. In paragraph 7 we see that there is a strong grammatical argument for saying that there was a finding in the first sentence, that the question was asked "Did he have a problem with drink?" There is not on a strict grammatical view a finding that that came immediately after the question about nationality, because that is specifically stated to be what Mr O'Driscoll said. There is then the striking sentence that neither Mr O'Driscoll nor Mr Button remember exactly what happened which casts a light on the whole of the findings of the Industrial Tribunal in that they are starting with some fairly uncertain material upon which to form their findings of fact. One then finds a sentence which, again we accept Mr Meeran's submission, on a strict grammatical construction only contains what Mr Button's explanation was, because the whole sentence and not just the first part of it does, as a matter of grammar, seem to be governed by the words "Mr Button's explanation is that". So that the introduction of Guinness into the conversation is there put as part of Mr Button's explanation and not in terms as a finding of fact. That of course is in line with what Mr O'Driscoll said in evidence on this subject. He is recorded in the Notes of Evidence as having said at page 17:
"Mr Button then said he'd previous applicants from Irish people - he said he noticed I was Irish and immediately followed up with I had a drink problem - may be not exact phrase used."
It was common ground between Counsel before us that "I had" should be transposed so that the sentence should read "and immediately followed up with, had I a drink problem" and that was Mr O'Driscoll's version, namely that the observation about nationality was immediately followed by the question about drink.When one comes to paragraph 9 we find a different finding because in what seems to us to be the central sentence of the whole decision one finds this:
"It seems that whatever Mr Button's intentions there was stereotyping going on here and that in the context of the question about Mr O'Driscoll's Irish nationality, followed by questions about Guinness and then about problem with drink over here, which Mr Button admits was a poorly phrased question and one for which, during the tribunal hearing, he apologised to Mr O'Driscoll if it gave offence, coming together do show a stereotyping"
Now in that sentence it seems to us that there is a small but quite vital difference between what was found at the beginning of paragraph 7, that is to say the immediate juxtaposition of the nationality and the problem with drink, and here where there is the insertion of the questions about Guinness. Mr Button's explanation revolves entirely about his introducing Guinness into the conversation and asking the question which was intended to convey that he wanted to know whether Mr O'Driscoll agreed that it was less good in England than it was in Ireland. This may seem a relatively trivial matter but in the circumstances of this particular case which involved two questions of no very great intrinsic demerit, it is in fact a matter of quite critical importance whether the Industrial Tribunal agreed and accepted with Mr Button's explanation that his purpose was the Guinness line of questioning, whereas the opposite view, Mr O'Driscoll's, hinges entirely on the immediate juxtaposition of nationality with drink, with no intervening conversation about the characteristics of Guinness.We are left at the end of the day with, as I said earlier, either an uncertainty as to which version the Industrial Tribunal accepted or a preference for Mr Button's view, namely that the Guinness was introduced in between the two critical questions and that would lend credence to Mr Button's explanation.The result of that is that we feel that this decision is flawed by not having sufficient findings of fact in it to enable one to see on what basis exactly the Industrial Tribunal reached the conclusion that it did reach. We should record that there was a challenge to the proposition that it was normal for Mr Button, when interviewing a person of Irish origin, to ask these questions about Guinness. It will be recalled that the Industrial Tribunal said that that was Mr Button's evidence. In fact the only two passages that we have been referred to as possibly justifying that conclusion are one on page 23 of the Notes of Evidence where Mr Button in cross examination said:
"No way I'd say right out `Do you have a drink problem' nor any point asking anyone else about Guinness in Ireland as they'd not know what I was talking about."
and secondly, a passage on page 25 where in answer to a member of the Tribunal he said this:
"A lot of the people that came for interview are young, not interviewed before, very nervous - we go out of way to put people at ease - if Irish people came I can talk about South Ireland and Guinness."
It would be perhaps more debatable whether that was sufficient foundation for a finding of what Mr Button's practice was but it does seem to us to fall somewhat short of an account of Mr Button's evidence. However, that is a subsidiary point, the main point is that we find that there is not sufficient finding of fact for a safe conclusion to be reached in this case and therefore unfortunately, we find that this case needs to be sent back to a different Industrial Tribunal for the question to be reconsidered.