Freeman v Salford Health Authority [1992] UKEAT 492_90_2807

EAT
Freeman v Salford Health Authority
[1992] UKEAT 492_90_2807 · 1992-07-28
MR JUSTICE HUTCHISON: This is an appeal by Mr Clifton Freeman, a psychiatric charge-nurse, at the material time employed by the Salford Health Authority at Prestwich Hospital in Manchester, from a decision of an Industrial Tribunal in Manchester given on 7 August 1990, dismissing his complaint of direct racial discrimination in relation to his employment.Mr Freeman is of Jamaican origin and his complain set out in paragraph 10 of Form IT1 was to this effect: that whereas he and a fellow charge nurse, Mr Colgan, who were both dissatisfied with the allocation of an "F" grading, both appealed asserting that they should have received a "G" grading, the appeal of Mr Colgan was successful and that of Mr Freeman was rejected although Mr Colgan was no better and indeed was rather worse qualified for a "G" grading than Mr Freeman. Mr Colgan is white. In fact, it will become apparent that the case presented covered a rather wider ambit than that.The facts can be summarised as follows. In 1988 a new grading system was introduced in the National Health Service and it became necessary to allocate grades to all employees. This was a difficult and controversial matter as is well known. Grading was to take effect from 1 April 1988, although the grades were apparently announced some time after that date and the criteria were drawn up over a period. Those grades with which we are primarily concerned are grades "F" and "G". Initially the authority determine grades by having regard to what a particular employee was engaged upon on 1 April.The position in relation to Mr Freeman and Mr Colgan was that at that date they were sharing responsibility for the Elton Ward. Mr Colgan had been in sole charge there for some time but a few days before 1 April Mr Freeman, who for the previous 12 months or so had been on an English National Board Course (ENB 655), returned to the hospital and was allocated to Elton Ward where he shared responsibility with Mr Colgan. The basis on which the two men were originally assigned to grade "F" was that that was the grade appropriate to persons who shared the joint control of a ward or equivalent, whereas grade "G" was appropriate to persons having a sole continuing control.By the time the appeals of Mr Colgan and Mr Freeman against their grading came to be considered, the authority had decided to adopt a less rigid policy of allocation not confined to the precise date of 1 April. According to them it was for this reason that Mr Colgan's appeal had succeeded because regard was had to his lengthy period of sole control prior to Mr Freeman's return from his course. Mr Freeman, however, not having had sole control lost his appeal and remained grade "F".It is necessary to mention a complication of importance -grade "G", and for that matter grade "F", has more than one branch. That so far discussed is the first involving the concept of sole continuing responsibility: the second relates to those described as clinical nurse specialists. Mr Freeman asserts, and asserted before the tribunal, that he was appropriately qualified for both branches and indeed, his ENB 655 qualification peculiarly qualified him for the second. The employer's case about that was that he had not had sufficient time since taking and passing the course to become a specialist in the clinical nursing field and, accordingly, did not at that time merit a "G" grading under the second head.It is material to note, as the tribunal record in the course of giving their decision, that it was suggested to the appellant that he should equip himself by further training and by there being prepared for him a personal plan so that he could be qualified for the grade "G2". Mr Freeman, as he was entitled to, again appealed, i.e. the second stage appeal, which was heard by the District General Manager, Mr Foster, who sat with 2 others and they dismissed that appeal. As again is recorded in the tribunal's finding, the panel sensed what they described as a mismatch of expectation and attitude between the appellant and the management and they urged that a personal development programme should be produced such as we have described to fit Mr Freeman for that grading.From that decision Mr Freeman brought a further internal appeal which had not, at the time of the hearing before the tribunal been determined, although we were told today that it had - unsuccessfully as far as Mr Freeman was concerned. He had in the main been of sick since the dismissal of his appeal to Mr Foster's tribunal although again we are told today that he has subsequently resigned from his employment.The findings of the Industrial Tribunal can be summarised as follows. First, they concluded that the original grading of Mr Freeman and Mr Colgan was correct since they were on 1 April sharing responsibility for Elton Ward. However, they go on to hold that it was right to allow Mr Colgan's appeal and to reassign him to grade "G" on the basis of the widened criteria because of his 6 months' period of sole charge of Elton Ward. It is implicit in their decision that concluded that as far as "G1" was concerned, the employers were right to reject the appeal of Mr Freeman because he did not have previous experience of a person in sole charge of a ward and indeed, against that part of the tribunal's conclusion there is no appeal.As to the complaint in relation to the failure to assign him to "G2" the tribunal say this:
"15. With regard to the applicant's failure to be graded "G2" we cannot say that the applicant should have been graded "G2". All we can say is that the respondents have assured us that they have applied their minds to the criteria for "G2" in relation to the applicant and have satisfied themselves that he did not qualify at that time. There was considerable discussion about the criteria for "G2" grade. It was suggested, for example, that the applicant was being tested for the "G2" grade against the "H" grade criteria. The respondents denied this. We imagine that there is bound to be a similarity between the criteria for "H" grade and "G2" as clinical nursing specialists. The respondents say, and we are sure they are right, that it is a matter of the degree of experience and responsibility. What the respondents always said is that the applicant had not had sufficient experience since obtaining the ENB 655 course. We saw them give evidence and are satisfied that those who made the assessments on the first appeal were fully experienced and would know what a clinical nursing specialist meant. It is impossible to draft criteria so as to avoid the input of opinion. Provided that the opinion is put in by someone with the appropriate knowledge and experience it is difficult for us to challenge it."
A little later, accepting that it may be correct, as the applicant asserts, that he was the only person who had taken ENB 655 who was not given a "G2" grade, the tribunal point out that ENB 655 is only one of the factors material to such a grading and say of the other nurses on whose supposedly more advantageous or favourable treatment the applicant relied:
"We are satisfied that the explanations given are genuine and do not amount to preferential treatment for the persons concerned."
They go on to deal not in detail but in a fairly general way with a number of other points particularly relied upon by the applicant in relation to the way in which others were treated in comparison with himself and to indicate their conclusion that any suggestion of discrimination on racial grounds implicit in that is ill-founded.The tribunal then went on to consider the second appeal procedure before the District General Manager, Mr Foster. They pointed out that he had a huge burden of appeals and had told them that he had to rely on the judgement of his managers as to whether or not a particular grade was justified. Pausing there, that is just what one would expect to happen in such an appeal structure. They record that he told them that he conducted the appeal of Mr Freeman in exactly the same way as any others and they, while categorising the procedure as somewhat haphazard - perhaps it is not surprising that it was, given the extreme pressure under which the service was at that time by reason of the introduction of the grading system -accepted Mr Foster's assertion that at the time that he did not know that the applicant was alleging racial discrimination. They go on to record, however, which is of some importance, that Mr Foster told them that he sensed that there might be a feeling of racial prejudice in the background and, therefore, made a point of enquiring of the Director of the Nursing Service who vehemently denied any racial prejudice was involved. Mr Foster also asked the Director of Nursing Services about the circumstances surrounding Mr Colgan's appeal.When it comes to expressing their decision and their reasons for it, the tribunal are comparatively brief. They say this:
"20. We had to ask ourselves whether the applicant has been treated less favourably than others who are not coloured and, if he has been treated less favourably, is there any reason for the unfavourable treatment. If we cannot find any reason then we are bound to infer that the reason the unfavourable treatment is discrimination.
21. However carefully criteria are drawn, interpretation of those criteria in relation to individuals is not a science. We are told there are thousands of nurses throughout the UK who feel that they have been unfairly treated by this grading system and we are sure by virtue of the very numbers involved that some have, in fact, been unfairly treated. We are not able to say whether the applicant was fairly or unfairly treated. What we are able to say, however, is that the applicant seems to us to have been treated by and large the same as all others involved in the grading exercise. We feel unable to draw an inference that the applicant was discriminated against on the grounds of race. The application will, therefore, be dismissed."The case was put as one of direct discrimination and reliance is placed on Sections 1(1)(a) and 4(2)(b) and/or (c) of the Race Relations Act 1976 .

(a) provides:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if- (a) on racial grounds he treat that other less favourably than he treats or would treat other persons;"

Material provisions are also to be found in Sections

"3(4)A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
4(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (c) by dismissing him, or subjecting him to any other detriment."Those are the material provisions of the Act and Mr Meeran in the course of his helpful and concise arguments accepted that this was not a complicated case so far as the statutory provisions were concerned and that essentially what was being alleged could be compressed into a sentence: that the appellant was discriminated against by being passed over for promotion to grade "G2" when others, no better and indeed, worse qualified than he was, were elevated to that grade and that the reason for the rejection of the appellant and the preference of others was his race.The criticisms advanced in the notice of appeal at the Industrial Tribunal were in summary as follows. Firstly, a failure to give adequate reasons for their conclusions; secondly, a failure to make any finding on the question, was the applicant fairly or unfairly treated?;thirdly, a misinterpretation or misapplication of the relevant provisions of the Act; fourthly, a failure to give any or any adequate consideration to the evidence of disparity of treatment between the Appellant and those colleagues whom he named; fifthly, a failure adequately to consider the evidence bearing on the conduct of the second stage appeal leading to an erroneous finding that it was appropriately conducted. There are then extended grounds. In paragraph 4 ground a) alleges that:"a) At paragraph 5 of their decision the Tribunal correctly state that the Appellants complaint was that he would have been awarded a "G" grade if he was treated as others were.The Appellant identified several colleagues who he claimed were treated more favourably than he was (paragraph 16 line 5). Whilst stating that they were satisfied with the Respondents explanations that there was no preferential treatment the tribunal give no indication, apart from one case, of the reasons which led them to believe the Respondents witnesses.Given - it is alleged - the direct conflict between the parties regarding the application of the criteria for grading the tribunal wrongly omitted to state which parts of the evidence they accepted and which they rejected.b) It was admitted that, at the material time, there were no written criteria for grading and that the criteria listed in the reply to the statutory questionnaire were drafted in response to the Appellants claim. The tribunal gave no indication of the weight, if any, given to the evidence of inconsistency in the application of the grading criteria notwithstanding the relevant provision in the Code of Practice for the elimination of Racial Discrimination.c) Whilst correctly recording (paragraph 16 line 24) that the Director of Nursing Services had in one case widened the criteria before it became actual policy the tribunal do not state what weight, if any, they attached to evidence given by the Chief Nursing Advisor that until it became policy, in the summer of 1989, the national guidelines on grading had to be interpreted strictly. It is submitted that by strict application of the relevant guidelines the individual concerned [a nurse, apparently Nichola Stewart] would not have been graded as a Clinical Nurse Specialist."
"d) The Director of Nursing Services decided, in the absence of a specific application for a regrading under Section 32, to treat an appeal as a regrading in the case of a white nurse but did not do so in the case of the Appellant. He failed to provide any explanation for such disparity of treatment, which was to the Appellant's detriment. ........ "
- that apparently, was a nurse named Mitchell but he was involved in regrading to "G1" and it is difficult to believe that that particular contention is material.
"e) The tribunals failure to make a factual finding on the essential question "was the Applicant fairly or unfairly treated"
It is contended that the statute makes it incumbent upon the tribunal to make such a finding.f) .....the tribunal have compared treatment accorded to the Appellant with treatment accorded to nurses throughout the country. .................... the comparison should have been with other nurses employed at Prestwich Hospital.g)The tribunals conclusion that the appeal was conducted "appropriately" is wrong in law " for reasons then given.It is correct to say that Mr Meeran in developing the arguments dealt with the matter rather more generally and without being tied necessarily to that formulation of the grounds of appeal although in one way or another he covered most of them.His main attack was concentrated on the failure of the Industrial Tribunal to resolve the issue whether there had been discrimination and/or whether the appellant had been fairly or unfairly treated and the failure of the Industrial Tribunal to give adequate reasons for their decision to reject the evidence that others had been accorded "G2" status who were less qualified for it than the appellant. From this he argues an inference of racial discrimination could be drawn.He began, which in effect is a reference to ground f) of his grounds of appeal, by attacking paragraph 21 of the tribunal's reasons. He criticised it in the following respects. First of all he suggested that the tribunal were wrong to make a comparison with nurses throughout the UK, he has in mind the sentences:
"We are not able to say whether the applicant was fairly or unfairly treated. What we are able to say, however, is that the applicant seems to us to have been treated by and large the same as all others in the grading exercise."
The comparisons should have been with nurses at the Prestwich Hospital.We can deal straight away with that. We do not think that that general statement in the concluding paragraph imports that tribunal had fallen into the error attributed to them. The whole of the case which had occupied some four days had involved a detailed examination of the way in which others nurses at the Prestwich Hospital were treated and we cannot, for a moment, entertain the notion that the tribunal were suddenly slipping into the error of making a comparison with nurses all over the country. We shall say in a moment how we construe that final paragraph when we have rehearsed some of the other arguments that are raised.The second criticism is that formulation in that paragraph 21 ignores the very important criterium of race. What is important, Mr Meeran submits, is whether there has been discrimination on racial grounds: whether the applicant has been less favourably treated on racial grounds. He submits that it was incumbent on the tribunal to make a finding of whether his treatment was fair or unfair. We understood at one stage that he was arguing that when they used the phrase "we are not able to say whether the applicant was fairly or unfairly treated" the tribunal were intending to refer to the concept of less favourable treatment as one finds it in the Act. However, in his reply to Mr Shannon's arguments, Mr Meeran made it clear that he was contending that they were, as their words suggest, referring to "fairness" rather than less favourable treatment and he argues that it was incumbent on them to determine the question of fairness and that they have, in fact, made no finding on whether the applicant had been more or less favourably treated.In that connection he referred us to a decision of the Court of Appeal in North West Thames R>H>A> v Noone [1988] ICR 813 and to a passage in the Judgment of May LJ at page 822 where one finds these words:
"For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an inadequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds."
Mr Meeran argues that the correct approach, and we would not dissent from this, is to address the question first of all, whether the applicant has been less favourably treated than comparable persons and secondly, if he has whether that it is on racial grounds. He submits that the Industrial Tribunal either failed to addressed the first part of that question but addressed a related question of fairness on which they expressed themselves "unable to reach a conclusion". They should, he submits, have been able to reach a conclusion and they should have made a clear finding of whether there had been less favourable treatment accorded to the applicant.As to those submissions, one has to look at the context of the two paragraphs and one has to bear in mind the basis on which the case before the tribunal had been conducted. There was no dispute from beginning to end but that Mr Freeman had not been accorded promotion to grade "G". There was no dispute but that a number of others, including particularly Nurse Stewart, had been promoted to that grade. There can, therefore, have been no doubt that the applicant, Mr Freeman, had - in that sense - been less favourably treated than others with whom he sort comparison.We conclude that the proper construction of those two paragraphs in the tribunal's reasons, is along these lines. They were well aware of the necessity to address both the question of less favourable treatment and whether it was on racial grounds: they also were, not surprisingly, given the situation which pertained in relation to the urgent grading of so many persons and the dissatisfaction that had been expressed by so many persons with their grading, aware of the complaints of unfairness affecting that process. There reference in paragraph 21 to "fairness or unfairness" is not to be construed to a reference to less favourable treatment in the terms of the Act: they are simply there saying against a background where less favourable treatment was not really an issue that they are unable to say whether the result from the applicant's point of view was fair or unfair but that they are quite satisfied in the terms of the Act that he was not less favourably treated on racial grounds. We cannot accept that there is any valid criticism in relation to that expression of their conclusion.The next principal attack relied upon by Mr Meeran is in relation to reasons. He makes this submission. The tribunal, if they are taken to be holding that the evidence adduced on behalf of the applicant of disparity of treatment is explicable on grounds other than racial grounds, should have expressed their reasons for saying so and when we come to look at the reasons, they have given no, or no sufficient, grounds for the conclusions which they reached. They should have identified the correct group - we have already dealt with that - and they should then, it is submitted have given detailed reasons for saying why the applicant's treatment, less favourable as it was than that of the others with whom he sort comparison, was not racially motivated. He contends that a number of specific persons were identified; criticisms were advances of the way in which they had been dealt with in comparison with the applicant and the tribunal simply fail in their duty to give any adequate reasons as to why they have resolved the issues arising out of that in favour of the respondent employers.In that connection he drew our attention to some guidance on the subject of "reasons" in the case of Meek v City of Birmingham District Council [1987] IRLR 250 . He draws attention in para 8 in the Judgment of Bingham LJ where the learned

Lord Justice says this:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of that facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an industrial tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
We pause, without reading them, to remark that Mr Shannon when he came to make his submissions invited us to consider as well paragraphs 9, 10 and 11, which put those observation Bingham LJ in context and make it abundantly clear that one should not be over astute to criticise an Industrial Tribunal in the matter of reasons.The argument was elaborated skilfully and with persistence by Mr Meeran. He pointed to a number of aspects of the evidence, particularly in relation to Nurse Stewart, someone who did not have the advantage of the ENB 655 grading which the tribunal at one stage said was a prerequisite to grade "G2" and who nevertheless was preferred to the applicant. We would just like to say in parenthesis that we very much doubt, given the context, that the tribunal in their reasons meant to use the word "prerequisite" we believe that the context shows that they were referring to its being one of the criteria or one of the non-obligatory requirements. If they did mean to find it was a prerequisite, and it would be surprising for we think there was no evidence to justify that conclusion, they plainly made adequate allowance for it. As we say, a number of detailed criticisms were made and the suggestion is that really the tribunal had to address the problems created by Nurse Stewart's preferment and give detailed reasons as to why they accepted that that was not evidence of discrimination on racial grounds.Mr Shannon answering those submissions puts the matter in this way. He points out that this was a case which had occupied a considerable time and in which the evidence had been investigated extremely thoroughly and he suggests that the proper construction of the Industrial Tribunal's decision is along these lines. They had before them a great deal of detailed evidence which plainly they accepted from the respondents' witnesses - that is evident from a passage in paragraph 15 where they say:
"We saw them [these witnesses] give evidence and are satisfied that those who made the assessments on the first appeal were fully experienced and would know what a clinical nursing specialist meant."
They plainly, therefore, accepted the evidence of those witness. Mr Shannon has drawn our attention to passages in the evidence e.g. page 51 and 52 of Mr Raye's evidence where one finds a detailed account of abilities, experience and qualification of Nurse Stewart. Equally, in other parts of the evidence there is to be found a detailed reputation by Mr Raye of some of the claims made by the applicant himself to be peculiarly qualified for that appointment and while it is true, and we accept that the tribunal do no go item by item through those matters, the proper inference from their decision is that, accepting as they did the respondents' evidence, they were saying in the light of that evidence which they accepted they were satisfied that Nurse Stewart, and for that matter the other comparators, were properly qualified for the grading which they received and that the applicant was not. They were satisfied, therefore, that good grounds existed for preferring the other employees and that no inference of discrimination on racial grounds could be drawn. That, as it seems to us is sufficient to dispose of that particular and main ground of appeal relied upon by the applicant.Returning to his grounds of appeal, Mr Meeran referred us to ground b) i.e. the contention that there were no proper written criteria and the tribunal gave no indication of the weight, if any, that they gave to the evidence of inconsistency. That, he submitted was to do with the failure to have due regard to the need to apply the selection procedure consistently -something for the necessity for which has been emphasised - and again to the inadequacy of the written reasons which were given. He referred us in that connection to the Code of Practice paragraph 1.14 which provides as follows:
"In order to avoid direct or indirect discrimination it is recommended that: (a) (b)in addition, staff responsible for shortlisting, interviewing and selecting candidates should be:
- clearly informed of selection criteria and of the need for their consistent application;- given guidance or training on the effects which generalised assumptions and prejudices about race can have selection decisions;"The staff here should have been clearly informed of the selection criteria and the need for their consistent application and he submitted that at the time there were no proper written criteria and the evidence was that the 12 particular criteria listed in the respondents' reply were only drafted in response to the questionnaire administered by the applicant in the course of the proceedings. In the absence of such written criteria, he submits that there must be a real question as to whether there was any consistent practice and the tribunal should have mentioned that in their conclusions.As to that, the response of Mr Shannon is to point out that while it is true that those detailed criteria only came into existence later, there was a good deal of evidence in the evidence of Mrs Proctor that there had been some written criteria and, more important, that there had been extensive discussions before the grading exercise was undertaken and that the people charged with carrying it out certainly knew what they were talking about and knew the relevant criteria. It is perhaps appropriate in that connection to refer to some of the general matters which Mr Shannon asked us to bear in mind and they were these.He pointed out that the applicant's main grievance had, in the first place, arisen in relation to Mr Colgan whose grading up to "G1" was satisfactorily explained. The respondents had shown in the course of their evidence that they employed many persons of ethnic minorities who got different gradings, and apparently the applicant was the only person who asserted that he had been discriminated against on racial grounds. The fact that no allegation was levelled against any particular individual, or any particular level of management and the applicant himself, as he made clear in the course of evidence, was not asserting that he had on any previous occasion been treated in a manner which justified a complaint of racial discrimination. Mr Shannon submits, therefore, that it is perhaps not surprising that the tribunal reached the conclusion that they did: this was a strong case on the respondents' evidence and there simply was no evidence on the basis of which a finding of discrimination on racial grounds could properly be made.Addressing the particular grounds of appeal relied upon Mr Shannon's submissions in summary, insofar as we have not already covered them, were to this effect. First of all, as to ground a) the tribunal plainly believed the respondents' witnesses who no doubt impressed them as being credible. The passages in the evidence to which he drew our attention have already been mentioned and need not be repeated. We have already dealt with his response in relation to ground b) and as far as ground c) is concerned, relating as it apparently does to Nurse Stewart, he mentioned the question of the widening of the criteria pointing out that at the time of Nurse Stewart's appointment to grade "G2" the criteria had already been widened - or at any rate widening was under discussion - and there was nothing improper in treating her in the way in which she was treated. In relation to ground d), which applies to Nurse Mitchell, Mr Shannon's submission is that however he was treated that cannot be to the applicant's detriment. Nurse Mitchell, as we have pointed out, someone who was appointed to grade "G1" and so far a ground e) of the appeal is concerned, Mr Shannon says that this is the one area of the appeal which alleges an error of law and he makes the submissions which we have already rehearsed to the effect that it is erroneous to advance the complaint that it was incumbent upon the tribunal to resolve the question: whether the applicant was fairly or unfairly treated. Insofar as the tribunal were addressing the criteria in the Act they are to be taken as having made an adequate finding about it. We have already covered ground f) - the pool for comparison - and indicated our rejection of the suggestion that the tribunal were there taking an inappropriate pool and forgetting all the evidence that they had heard about the specific comparators whose names had been mentioned in the course of the hearing.Ground g) relating to the appeal was categorised by Mr Meeran as not his strongest ground of appeal although he did not abandon it. What he had to say was that there were legitimate grounds for criticising the decision in relation to the appeal: it was an appeal which Mr Foster was not seriously considering the anomalies which were thrown up by the evidence. We have already indicated that in our view Mr Foster could well do other than approach the matter by relying upon the views and conclusions expressed by those with the skill and the responsibility for reaching views on the matter of grading.Mr Shannon submits first, that on the respondents' evidence that no complaint was ever made to Mr Foster about race - that is disputed, apparently, by the applicant, but more important, Mr Shannon submits, Mr Foster whether on his own initiative or because of a complaint made enquiries of appropriate persons and was satisfied as a result of those enquiries. Mr Foster's evidence, moreover, was that he had no option but to rely on the evidence of those who had formed a view about grading.That substantially covers the grounds which have been advanced in support of this appeal. We reject the criticism of inadequate reasons which is the principal ground relied upon. It seems to us that the decision of the tribunal was carefully expressed and is justified by the evidence to be found in the Chairman's Notes which are before us. There was here, in truth, not even the beginning of the suggestion of positive evidence of discrimination on racial grounds. The matter was, therefore, one of inference: the applicant invited the tribunal to infer that his failure to obtain "G" grade must import a discrimination on racial grounds.The tribunal carefully considered all of the evidence that was before them: they reached a conclusion which was essentially a factual conclusion and there is, in our judgement, no error of law in their decision and this appeal must be dismissed.