Quazi v Crawley Borough Council [1993] UKEAT 167_91_2204

EAT
Quazi v Crawley Borough Council
[1993] UKEAT 167_91_2204 · 1993-04-22
MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was dated 15th August 1990 Mr Javed Quazi complained that he had been the victim of racial discrimination by his employers the Crawley Borough Council. At that stage he alleged direct discrimination under Sections 11(a) and 4(1)(c) of the Race Relations Act 1976 but subsequently at the hearing he amended, without objection, allegations of discrimination under Section 4(2)(b) and Section 1(1)(a) of that same Act.

(b) in its relevant wording reads:

"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 . . ."

I do not think the rest of the wording is relevant.

(a) is the direct discrimination, as we all know, it reads:

"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."
Mr Quazi failed to be promoted by the Borough Council and he alleges that that was because of his race, to apply the strict test of James v. Eastleigh Borough Council , but for being of an Afghan minority ethnic race he would have been promoted to the position he was seeking.His case came before an Industrial Tribunal sitting at Brighton on three days in January 1991, the Chairman was Mr Wilson. Mr Quazi appeals. We have before us a careful judgment and also extensive and careful Notes of Evidence for which we are most grateful. It looks as if they were taken on a word processor but in any event we are most grateful to the learned Chairman for the clear and complete set of notes which we have before us.This case, if we may say so, has been argued most helpfully on both sides by two experienced advocates and it is so important in these difficult cases of discrimination that the issues are placed before this Tribunal in a succinct way and in a clear and analytical form. Speaking for myself, I am, yet again, most grateful to both of them.The history is very short indeed. The Applicant, Mr Quazi, was employed by the Borough Council from the 30th September 1985 onwards. He was a supervisor in the Refuse and Cleansing Department. In June 1990 the Council advertised internally two posts. This all came about as a result of compulsory competitive tendering under the provisions of the 1988 Act; the two positions were for a Supervisor and a Senior Supervisor. The two applicants, and only two applicants, were Mr Quazi and Mr Bates. Mr Bates was white, Mr Quazi, as we have already said, came from Afghanistan. The split in the refuse and cleansing work enabled these two posts to be created and the two applicants were remarkably well equipped to apply for those posts, we are only concerned with one. Both Mr Quazi and Mr Bates are in the same department, it was not a very large department, it was shrinking as the result of the compulsory competitive tendering and they had had, what might be termed, joint and equal responsibilities and considerable local authority experience. The question of the appointment was rather hurried. The notice of the interview was somewhat short, but in the event the interview took place before a panel of three. The Chairman of the panel, the Director of Works, was the head of this Department, Mr Hall. Mr Beswick, the Services Manager, was the second member. He had been in the Department but he was, in the future, to be the Line Manager for whoever was appointed. The third member, the Personnel Officer, Mr Wyles has considerable experience and standing in the profession, in the world I was going to say, of equal opportunities. He was a lecturer; he had taken part in a number of other aspects and could well be regarded by the Tribunal on the evidence as someone extremely experienced in that field.The applicants were interviewed one after the other, Mr Bates first, five minutes between them both. The decision was a narrow one, as everyone agrees. Mr Bates was appointed and Mr Quazi was the disappointed applicant. The issue therefore, before the Tribunal, was had Mr Quazi proved, on the balance of probabilities, that the reason for his failure to be appointed was on the grounds of race?The law in this field has gradually become crystallised, it has been proved difficult over the years, but now it is reasonably clear. A number of authorities were cited to the Tribunal. They are set out in paragraph 4 of the judgment:

"BAKER v. CORNWALL COUNTY COUNCIL [1990] IRLR P194

NOONE v. NORTH WEST THAMES REGIONAL HEALTH AUTHORITY [1988] IRLR P195

PERERA v. THE CIVIL SERVICE COMMISSION [1983] IRLR 166

KHANNA v. THE MINISTRY OF DEFENCE [1981] IRLR 331

CHATTOPADHYAY v. THE HEADMASTER OF HOLLOWAY SCHOOL [1981] IRLR 487,

and LONDON BOROUGH OF BARKING v. CAMARA [1988] IRLR 373"

Those cases were all considered by the Tribunal who direct themselves in law in paragraph 17 of the judgment as follows:
"We have reviewed all the authorities referred to above. We are satisfied that the onus of proof remains upon the Applicant and does not shift to the Respondents. Referring in particular to the judgment in British Gas plc v. Sharma , having heard all the evidence we do not find that there are primary facts which, in the absence of explanation, point to discrimination and in those circumstances it is not open to the Tribunal to infer racial discrimination."
Mr Meeran submits that that is not a sufficiently accurate approach in law. He has referred us, in particular, to a case which has been decided since the Tribunal decision, namely, the case of King v. Great Britain-China Centre [1992] ICR 516 CA. This was a case on appeal from this Tribunal where the Court of Appeal reviewed a substantial number of the earlier cases involved in the guidance given to Tribunals on the approach to be made in these difficult discrimination cases. The most important aspect upon which we had sought guidance from the Court of Appeal, was on the principle of the shifting of the burden of proof, and whether the burden of proof ever shifted from the Applicant in these cases. That arose as a result of differing views and of practice, that is not differing views of this Tribunal, but a practice which was being exercised which was contrary to the views expressed in this Tribunal. It was felt that the Court of Appeal should express a clear opinion, which it has, upholding the views of this Tribunal.The principles are set out by

Lord Justice Neill, who gave a reserved leading judgment on page 528 at F:

"From these several authorities it is possible, I think, to extract the following principles and guidance."
pausing there, these are not rules but they are guidance and I read on:
"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that `he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Thames Regional Health Authority v. Noone [1988] ICR 813, 822, `almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. 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. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to provide his or her case."
The other passage to which we have been referred on the general approach is that in London Borough of Barking v. Camara [1988] ICR 865, to which we have already made reference at p.879C where this Tribunal has said:
"We emphasise that in these racial discrimination cases inferences of fact will almost certainly form an integral part of any decision. Whether or not there is sufficient evidence on which each such inference can be based is a matter of law, but whether or not such inferences are in fact drawn is - to state the obvious - a question of fact for the tribunal of fact. It may, or it may not draw the inference, but in the absence of perversity it is not for the law to direct the tribunal of fact that it should - whether the shade of meaning given to that word is `ought' or `must' - draw that inference. The tribunal, as any other jury, should not be afraid to believe or disbelieve and should not shrink from so doing."
Thus, Mr Quazi had to satisfy the Tribunal what was the true reason for his failure to obtain promotion and that in fact that reason was on the grounds of race.Mr Meeran has made a number of comments about the approach of the Tribunal and paragraph 17 in particular. He submitted that the train of thought should have been to examine the primary facts first of all; then to examine the difference of treatment and if there was difference of treatment to see whether there was difference of race; then to ask whether those facts and that difference of treatment to that stage pointed to discrimination; if so, to look for an explanation offered then to see whether they accepted or rejected that explanation and finally, in the light of all those findings, to look at the overall picture and to decide whether or not the Applicant had succeeded in proving his case. In particular, during that process, he submits that the Tribunal should have looked at a number of specific matters about which it did make findings. First, Mr Beswick was said by them in paragraph 9 of the decision, to have been rather the leading hand on the panel. They say in the first sentence of paragraph 9:
"During the evidence given to this Tribunal it became very clear that the other members of the panel would `go along with' Mr Beswick's decision."
and that merited enquiry, says Mr Meeran; also that the following two sentences should have merited further enquiry namely, Mr Beswick, after the interview had been completed and the decision made, in fact wrote up some more notes of his own overnight and those notes perhaps reflected a rather more clear cut distinction between the two applicants than was strictly indicated from the score sheet which had been completed during the interview itself.Secondly, he submitted that there was a failure to consult a Mrs Peers, who, prior to Mr Beswick, had been the Line Manager for these two applicants. He emphasises the importance to have done that because she was surprised at the failure of Mr Quazi, as were two other witnesses who came forward and expressed their views.Thirdly, he submits that the panel members did not really have a sufficient knowledge on a personal basis, from immediate enquiry about these two applicants and therefore that that again was unsatisfactory. All those items, he submits, rendered the panel decision unfair.He also added that the Tribunal perhaps could be criticised in two ways, first, for not taking sufficient note of a somewhat disparaging remark by Mr Beswick about a university degree held by Mr Quazi. Secondly, that they had been unfair in their comments about a witness who was a Clerical Assistant and a member of the same trade union, namely, Maria Higino. As to the disparaging remark the evidence shows it was perhaps not quite as disparaging as, at first sight, it might seem, but it was drawn to the attention of the Tribunal who took it into account. So they did take that into account. So far as Miss Higino is concerned the Tribunal said this:
"This witness appeared to the Tribunal to feel very strongly about all types of perceived discrimination and clearly had a great deal of sympathy for the Applicant. However, we found her evidence to be of not great significance."
Looking at the Notes of Evidence, Mr Meeran submits, that that was not a fair comment. It must be remembered however that notes are merely Notes of Evidence, they are not verbatim and that the comment there is as to attitude and we did not see or hear the witness. The Tribunal did, and to criticise them in that way in our judgment is not a well founded criticism.Turning therefore to these three main arguments of Mr Meeran. First of all Mr Beswick: well of course he was due to be the new Line Manager and it seems to us that it may very well be that he was going to have a very considerable say in the decision because he was going to be responsible for the successful applicant in the future. It is also clear that he was totally frank with the Tribunal about the fact that he had written up some copious notes after the interview had been complete, because he foresaw that he might be asked about it later and he wanted to record his own feelings. He therefore expanded in those notes. They are before us, we have looked at them and there is nothing particularly unpleasant about them; but they are expanding on the interviewing which had been completed. That is the end of the criticism of Mr Beswick because clearly the Tribunal did look at all these matters; did look at the criticisms which are now being made, and say, at the end of paragraph 9:
"Nevertheless, after exhaustive questioning of each of the three panel members by the Applicant's representative and by members of the Tribunal we concluded that all three felt that either Applicant could do the job but that Mr Bates just had the edge because of his superior ability to get on with the men."
In other words it was on the marginal factor of management that Mr Bates succeeded. It is also fair to say, they added at the end of paragraph 14 of the judgment:
"The Respondents had to choose one out of two men for this particular post and we cannot find any surrounding circumstances pointing to an inference of racial discrimination."
The second point taken is that Mrs Peers was not consulted. Mrs Peers had in fact had considerable communication with Mr Hall, the Director of Works, in connection with the compulsory competitive tendering and the fact that some of the members of staff were going to have to be made redundant. It seems to us that it might have been advisable to consult Mrs Peers but her views were clearly known, they were laid before Mr Hall who was able to discuss all the staff with her beforehand, and the panel did know, certainly of, and enquired about, the two applicants. There is no obligation to consult a former manager; I say former because Mrs Peers left and there had clearly been some altercation between herself and Mr Hall about the future arrangement of the Department, and indeed the evidence showed that Mr Hall had had some doubts about the objectivity of her approach to the re-organisation of the Department. The mere fact that Mrs Peers was not consulted does not seem to us to point, or to the Tribunal to point, towards any racial element in that decision. It may have been a criticism that it was desirable for further consultation to have taken place, but that does not seem to us to be, a pointer towards discrimination.The third point taken is as to the adequate explanation of the reason why Mr Bates was chosen. It is always difficult where the contest is close, and it was marginal; the expression used by the Tribunal used was "had the edge". It is difficult to be able to say precisely why one chooses one applicant rather than another. As was pointed during submissions by an Industrial Member, I think with which we all agree, that experience is all important in these matters, one's antennae tell you something, there is a question of feel. Of course to minimise the subjective element is desirable while there is a risk of discrimination, but to eliminate it is almost impossible and the Tribunal simply had to see and hear the members of this panel and to test them, as they say they did, to see whether they felt that they were genuine in their approach or whether there was any unintentional, unconscious, discrimination in this case. That they knew about these two applicants seems to us to be quite clear. Mr Wyles, made this quite clear in the Notes of Evidence (if the reference is needed pages 40 and 41, Mr Beswick at page 43 and Mr Hall at page 47 is also apparent from Mr Beswick's notes). The Tribunal were clearly satisfied that they were able to reach a proper conclusion and again, it seems to us that the criticism made on this point cannot be substantiated, but the importance of the analysis in this case is this, that really Mr Meeran's submissions are met by his successful submissions to the Court of Appeal in Quereshi v. London Borough of Newham [1991] IRLR 264. That was a decision of the 6th March 1991 in the Court of Appeal, it was not cited in the King case. The importance of this case is to stress the difference between unfairness of treatment and difference of treatment, it is the difference of treatment which is relevant in the issue of discrimination because if both applicants were unfairly but equally treated then that does not give rise to an inference of discrimination. Unfairness, unless of course it is also a differential does not point, in our judgment, of itself to discrimination.In Quereshi the passage from the citation in West Midlands Passenger Transport Executive v. Singh [1988] IRLR 166 CA from the judgment of Lord Justice Balcombe in which he quoted a passage from an earlier case of Mr Justice Browne-Wilkinson is really the starting point of the reasoning of the Court of Appeal, it is Lord Justice Leggatt giving the leading judgment, at paragraph 20 of that judgment this is said:
"`. . . a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds.'"
we emphasise that last phrase "consistent with him having been treated less favourably than others on racial grounds". I continue with the citation:
"`In the majority of cases it is only the respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent motivations. It is for this reason that the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the Industrial Tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the Industrial Tribunal that there is an innocent explanation. . .'"
and then

Lord Justice Leggatt continues:

"It seems to me that there is here nothing in the language of Mr Justice Browne-Wilkinson consistent with Mr Qureshi having been treated less favourably than others on racial grounds. On the contrary, there is nothing to suggest that the borough do not treat alike all those in a similar position."
pausing there and applying that comment to the present case, there is nothing in the present case to indicate that Mr Bates was treated any differently from Mr Quazi. Then

Lord Justice Leggatt says this:

"Shortly after the passage I have read from the Industrial Tribunal's conclusions, they said later in paragraph 8:
`We accept that the failures to implement in certain important respects the details of the equal opportunities policy could be said to apply to all the candidates, and not only to Mr Qureshi; nevertheless these details are designed particularly to protect and equalise the chances of a person from an ethnic minority, and the failures are more likely potentially to affect adversely Mr Qureshi than the three white candidates.'But that, in my judgment, misses the point. It is not with the effect of treatment but with the equality of treatment that the Act is concerned."That emphasises there the situation and in paragraph 27 the learned

Lord Justice continued:

"The defect in that process of reasoning seems to me to be the assumption that the policies would have been properly applied to persons of different racial origin from Mr Qureshi. The failures to which the Industrial Tribunal invited attention were, as they found, not deliberate. There is, therefore, in my judgement, no jurisdiction for assuming, still less for inferring or finding as fact, that, because the policies were not applied to Mr Qureshi, the failure must have been due to discrimination. In the absence of any hint of prejudice on racial grounds, the more natural inference from a failure in relation to one person is that there would have been failure in relation to others, if not to all. There is absolutely no warrant for an inference that others would not have suffered from the failures of which Mr Qureshi was the victim, or that he was so on account of any discrimination on racial grounds. Incompetence does not, without more, become discrimination merely because the person affected by it is from an ethnic minority."
Those submissions of Mr Meeran's in the Court of Appeal found favour with the Court and it seems to us that very much the same submissions and comments apply here.There may very well have been an unsatisfactory panel interview; there may very well have been other things which, from the point of view of fairness to both these men, should have taken place but there is no evidence of differential treatment from which the inference of discrimination could start in the present case. The issue really, in the end, was what was the true reason for the panel decision, and has Mr Qureshi proved that the reason was the grounds of race? This Tribunal clearly, after three days of hearing, looked at the matter with the greatest care and despite the able submissions of Mr Meeran we are quite unable to find that they erred in law or indeed in the approach. We hope we have given our reasons for taking that view.This appeal must be dismissed.