London Borough Of Enfield v Wallace [1993] UKEAT 383_92_2901

EAT
London Borough Of Enfield v Wallace
[1993] UKEAT 383_92_2901 · 1993-01-29
MR JUSTICE KNOX: The appeal before is in proceedings brought by Miss Wallace against the London Borough of Enfield, claiming that she had been discriminated against, contrary to Section 1(1)(a) and Section 4(2)(b) of the Race Relations Act 1976 and victimised contrary to Section 2 of the Race Relations Act in connection with her application to her employers, the London Borough of Enfield for promotion to the post of Acting Community Team Leader.The Industrial Tribunal sitting at London (North) at fairly widely spaced days on the 11th, 12th December 1991, 30th January and the 12th and 13th March 1992, with a sitting In Chambers in April, decided that Miss Wallace was indeed subjected to racial discrimination and victimisation in that regard.Miss Wallace, who is of Afro-Carribean origin, was employed for quite a long time by the London Borough of Enfield, the Appellants before us. I will call them "the London Borough". She started with them in February 1981 and that was not very long after she had got her professional qualification as a Social Worker. She had had significant experience as a Nurse before that, rising to the responsible position of Sister and she was no longer a very young woman, even when she started she was some 30 years of age. She had subsequently been with the London Borough during which period three matters arose before November 1988. First, she had taken four years to rise from her original Scale 2 to Scale 3. She reached that higher Scale in early 1985. Secondly, she made a complaint to an Industrial Tribunal in 1988 alleging racial discrimination and that was settled by the parties in November 1988 and thirdly, again in 1988, she took out a grievance complaint which was turned into a disciplinary hearing but out of which she emerged entirely unscathed, because it was found at that stage, that she had put right, what had previously been criticised, in a very commendable manner. So that all those matters were well in the past when the matters with which these proceedings are directly concerned occurred. These latter matters happened in 1990, the particular interview at which she did not satisfy the interviewing panel occurred on the 18th September, but there had in fact been two earlier applications by her for posts, internally, in February and April 1990, and the panel that sat to decide the best candidate in April 1990 was the same panel as the panel with which we are directly concerned. It consisted of three persons, Mr Dutton, who at the time was Acting Assistant Director of Social Services, he chaired the panel, Mrs Drysdale, then Principal Administrative Officer, Staffing, and Mr Todd, Field Work Manager. The two former, Mr Dutton and Mrs Drysdale gave evidence before the Industrial Tribunal. Mr Todd did not because he had left the London Borough's service. He equally, for quite different reasons, played a much less prominent role at the interview itself, since he had a throat condition which prevented him from speaking. However, all three of the interviewers made notes and marked the candidates. They all three selected as the successful candidate, a Miss Harbour, who was a little, but not very much, older than Miss Wallace, and the differences between their markings were not very significant. Mr Dutton gave Miss Harbour a 22.7% lead; Mr Todd gave her a 29.09% lead; and Mrs Drysdale gave Miss Harbour a 32.5% lead. On their respective markings, it is the fact that Mrs Drysdale's marking was, throughout, lower, but that is not what matters, what was significant was the differential rather than the absolute level at which the relative examiners marked. There is an unfortunate misprint in the Industrial Tribunal's findings about the marks which was accepted before us as being merely a clerical error. They record Mr Dutton as having given Miss Harbour 32 marks whereas if one looks at the exhibit it is perfectly clear that it was 22 and not 32. That was not a matter of dispute before us, but equally it is not a matter of capital importance.At an interlocutory hearing, of which there were several, it was decided that there should be a limit to the extent to which the Tribunal should investigate events in the past. The letter recording that decision is dated just October 1991 but it clearly referred to an interlocutory hearing on the 30th September, and therefore, was presumably very early in October. The relevant paragraph reads as follows:
"The Tribunal considered the application made by Mr Wiltshire that evidence could be adduced of events going back to 1981. The unanimous decision of the Tribunal, after careful consideration of the circumstances in this case, is that the Tribunal hearing the issues should consider events which arose after November 1988 when the settlement decision was made."
Mr Wiltshire appeared for Miss Wallace. It is clear enough that that reference to "November 1988 when the settlement decision was made" refers to the earlier complaint to an Industrial Tribunal that Miss Wallace had made in 1988 and which was settled in that month of November of that year. We interpret that interlocutory decision as one that excluded an investigation of the merits of that dispute that was thus settled. We do not read it as being an exclusion of the fact that there had been the complaint made by Miss Wallace and that it had, in fact, been settled. Subject to that the Tribunal, and no one criticised them for doing this, did decide on that occasion not to go into the rights and wrongs of any matters that arose before November 1988 so that it does seem to us to follow that the first of the features that I mentioned after Miss Wallace joined the employment of the London Borough, the length of time that she took to be promoted from Scale 2 to Scale 3, is something which it was outside the purview of the Industrial Tribunal to investigate in relation to the rights and wrongs of such delay. There was, however, some evidence given by Mrs Drysdale, under cross-examination principally, to the effect that four years was longer than normal and that taking as long as that would be indicative either of the fact that the candidate did not want to go up to level 3 or that parts of their work still needed development. It is also right to record that there was an objection at an earlier stage of the hearing at the leading of evidence on the subject of the compromised application to the Industrial Tribunal in 1988 and we were told and we would accept, because it was not challenged, that in closing speeches the same point about the interlocutory order excluding consideration of issues regarding events earlier than November 1988 was made to the Industrial Tribunal.That was the background to the critical interview on the 18th September 1990. The Industrial Tribunal, as already mentioned, saw two of the interviewing panel as witnesses, and they were examined and cross-examined at some considerable length, as indeed was Miss Wallace herself. It will suffice for our purposes to concentrate on the central findings of the Industrial Tribunal. There really was little, if any, dispute before us on the question of the applicable law. We were referred to two decisions only, one King v. The Great Britain-China Centre [1992] ICR 516 at page 528 of which one finds a summary by Neill LJ of the effect of a number of authorities in this field in which he said this:
"From these several authorities it is possible, I think, to extract the following principles and guidance:
(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 `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 s.65(2)(b) of the 1976 Act 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 in North West Regional Health Authority v. Noone `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 prove his or her case."and we take that as our guide. On the other hand to Qureshi v. The London Borough of Newham [1991] IRLR 264, at page 267 of which Leggatt LJ said this:
"Stripped to its essentials, the approach of the Industrial Tribunal went, as it seems to me, like this, and it did so in both the sub-paragraphs (a) and (b) of paragraph 8, which I have read. The equal opportunities policy, including the policy relating to references, was intended to apply generally, and indeed equally. Therefore, it is to be assumed that the policy would have been applied properly to a person of different racial origin from Mr Qureshi. The policy was not applied properly to him. Therefore there was discrimination against Mr Qureshi.
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 origins from Mr Qureshi. The failures to which the Industrial Tribunal invited attention, were as they found, not deliberate. There is therefore, in my judgment, no jurisdiction for assuming, still less for inferring or finding as a 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 a 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 a 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."To return to what the Industrial Tribunal did seeking to apply, in particular, King v. The Great Britain-China Centre , which was referred to them as well as to us, they said this in the concluding few paragraphs of their decision:
"25 The primary facts as we see them are that the Applicant had a greater struggle to get promotion to Grade 3 than was the norm. This was despite her length of experience and her academic qualifications. The panel which interviewed her in September comprised Mrs Drysdale who had been at the grievance hearing and who was aware that it had been turned into a disciplinary hearing even though her role at the hearing had been that of a note-taker. She had been on the panel which had failed to appoint the Applicant in April as had Mr Todd. She appeared to have assessed the Applicant's replies differently from the way she had assessed Sue Harbour's replies from what the Tribunal could see in her notes. She was aware that the Applicant had taken proceedings in 1988 in the Industrial Tribunal.
26 We were well aware that we were not present at the interview and that all we could consider was the evidence we heard from the people who were present and the documents relating to the interviews. We were equally aware that it is extremely unlikely that anyone will admit to acting in a racially discriminatory manner and we had therefore, having considered the primary facts, to see whether there were any inferences that could be drawn from them. We were concerned that the Applicant had apparently not had complaints made with regard to her work and yet had failed to receive promotion. We were concerned that Mrs Drysdale had been on the interview panel and that she had been present at the grievance hearing, albeit as a note-taker, that she was aware that this had been turned into a disciplinary hearing. She and Mr Todd had been on the interview panel which had rejected the Applicant in April 1990. We were not satisfied with the answers we received from Mrs Drysdale regarding what appeared to be the different way in which she assessed the Applicant's replies from the way she assessed those of Sue Harbour. Mrs Drysdale was aware that the Applicant had commenced proceedings against the Respondent in an Industrial Tribunal. The reasons given by the Respondent failed to allay these anxieties.27 We considered whether it would be right in the circumstances of this case to draw inferences that the Applicant was being subjected to race discrimination. Was she being assessed more stringently than was the successful candidate or, to put it (sic) Mr Wiltshire's phrase, `Was there a difference in the manner in which the Respondent appraised the Applicant's responses"? The Tribunal believes that there was such a difference. In the Respondent's reply to the Section 65 Race Relations Act Questionnaire sent by the Applicant, the reply under (f) `Your most important failings in relation to your application' refers to, `It was felt that you missed opportunities to represent a management perspective in response to questions. In comparison with the successful candidate you did not reflect as detailed a knowledge or understanding of the specific management role in relation to field social work services'. Yet the question which dealt specifically with this aspect of the candidate's expertise was question 9 for which the Applicant scored 3 with her response and the successful candidate scored 3+, [then there is a reference to Mr Dutton's scores at page 84 of a bundle of exhibits].28 The Tribunal accepts the Applicant's evidence that she gave a better performance at the interview than she was credited with having done. Certainly on the length of her experience and her qualifications we accept that she had strong grounds for believing that she had a much better chance of selection than had Sue Harbour who had considerably less experience. We believe in the circumstances of this case that the reason why the Applicant was not selected was on account of her race. We find, further, that she suffered victimisation: the fact that she had brought a complaint to an Industrial Tribunal in 1988 affected the decision of the interviewers."The criticisms that have been made against that decision are as follows. First of all it is said that the primary facts, as stated in paragraph 25 and as referred to in paragraph 26, included two illegitimate matters in the field of inferring racial discrimination. They are illegitimate, it is submitted, for quite separate reasons. The first the statement that the Applicant had a greater struggle to get promotion to Grade 3 than was the norm. Factually that is not challenged, but what is said, and we see the force of it, is that the words "greater struggle than the norm" do involve an evaluation of the merits of the delay beyond the normal two years that occurred in the process of Miss Wallace achieving Grade 3 rather than Grade 2. That was clearly something that happened before November 1988. It happened between 1981 and 1985 and it is said, and it seems to us right, that any evaluation of the reasons for that greater period than normal did involve an investigation of matters which the interlocutory order had ruled out of bounds. The second criticism relates to the findings that Mrs Drysdale had been at the grievance hearing and had been on the panel that did not appoint Miss Wallace in April of 1990. It is said that those are intrinsically neutral and not indicative of any differential treatment that could amount to discrimination on racial grounds. That again, in itself, was not challenged by Mr Meeran, who appeared for Miss Wallace. What was said by him was that although these two findings are described by the Industrial Tribunal under the heading of "The primary facts" they do not form an essential part of their decision if the several paragraphs that I have set out, at some length I fear, are read as a whole and that if one does read the whole of those four paragraphs one can discern that what I have just referred to, namely, the greater struggle to get to Grade 3 and the involvement of Mrs Drysdale in the grievance hearing/disciplinary hearing and the earlier panel in April 1990, all formed part of the background and was not critical in arriving at the decision. We are not satisfied that it is safe to make that assumption. We say that for at least two reasons. The first one is that these are stated to be "The primary facts" and the earlier reference to the decision in King v. The Great Britain-China Centre is a strong pointer to the conclusion that these were not only the primary facts but the relevant primary facts as the Industrial Tribunal saw them.The second reason is that much the same as was said in paragraph 25 is, in fact, said in paragraph 26, which I have read and need not repeat. Indeed, the fact that Mrs Drysdale was on the earlier panel and had been involved in the earlier disciplinary hearing in a note-taking capacity is something that was said not twice but four times in the course of the Industrial Tribunal's decision. It is also stated in paragraphs 20 and 21. When one comes to the end of paragraph 26 and finds the sentence:

"The reasons given by the Respondent failed to allay these anxieties."

it seems to us impossible to place the limitation on that rather ambiguous expression "these anxieties" that Mr Meeran invited us to place, namely, that all that it referred to was the immediately preceding two sentences which dealt with Mrs Drysdale's assessment of Miss Wallace and Miss Harbour's replies to questions and did not refer back to the four times repeated point about Mrs Drysdale's involvement in earlier matters and did not refer back to Miss Wallace's failure to get, as quickly as most, from Grade 2 to Grade 3. It seems to us that the essential ambiguity in the expression "these anxieties" is not susceptible of being solved by that process of distinguishing between one set of anxieties and another. We would interpose, that it is on the whole not very helpful to this Tribunal for an industrial tribunal to set out its findings of fact in terms of its own feelings of concern. These are feelings that we can readily understand, for this is an anxious and difficult jurisdiction but the function of an industrial tribunal is to find facts and not to describe the feelings that they suffer in arriving at their conclusions. We have not been able to accept Mr Meeran's submission that we should disregard these expressions of concern as being matter which is purely background and not determinative of the decision that the Industrial Tribunal reached at the end of the day. Couched as it is, in terms rather of concern than findings of fact, we have, we think, to treat the statements of concern as the substitute for findings of relevant fact and, on that basis we do find that there is a strong case for saying that matters were taken into consideration that, it was accepted, should not have been taken into consideration.The matter does not end there because when one comes to the passage in paragraph 27 which Mr Meeran, rightly, as we think, describes as the "heart of the matter" it does contain the most unfortunate and clear error of fact. The question that was posed, perfectly legitimately, was to quote Counsel for Miss Wallace's formulation before the Industrial Tribunal:
"was there a difference in the manner in which the Respondent appraised the Applicant's responses?"
it was answered by the Tribunal saying:"The Tribunal believes that there was a such a difference. In the Respondent's reply to the Section 65 Race Relations Act Questionnaire" there were certain replies given.It is, in our view, quite plainly beyond any sort of argument that this reference to the London Borough's reply to the Section 65 Questionnaire is the Industrial Tribunal's explanation for its belief that there was this difference, which of course in itself, was discriminatory and when one looks at the explanation it clearly is flawed, and the flaw is not explicable on the footing of a clerical mistake. What was said in the answer to the Questionnaire, which is quoted, is:
"`It was felt that you missed opportunities to represent a management perspective in response to questions. In comparison with the successful candidate you did not reflect as detailed a knowledge or understanding of the specific management role in relation to field social work services'."
The next following paragraph in the answers to the Questionnaire read as follows:
"The panel considered your response to the question on care and the community legislation to be technically weak and you were unable to give a full account of how the social work role will change as a result of current and impending changes in social work legislation."
The way in which that matter was dealt with by the Industrial Tribunal was to say this:
"the question which dealt specifically with this aspect of the candidate's expertise [that is to say the one relating to field social work services] was question 9"
and they mention the fact that Miss Wallace scored 3 and Miss Harbour scored 3+ in Mr Dutton's score. Question 9 is clearly not the question that was directed to field social work services. It was a question that was asked of all the candidates on the evidence. It reads as follows:
"9.Can you tell us something about how you consider the social work role will change as a result of current and impending changes in social work legislation?"
That was a question that was quite plainly directed to the effect of current and impending legislation by Parliament, and it seems to us perfectly clear, that it was the subject matter of the second of the two paragraphs quoted above from the answers to the Questionnaire, about the technically weak answer of Miss Wallace. It has, on no view, any relationship to management in relation to field social work services. That it was not a clerical mistake that question 9 was selected is established by the fact that Mr Dutton's marks, which are referred to by the Industrial Tribunal, do indeed, under question 9 and no other question, give Sue Harbour 3+ and Heather Wallace 3, and there is a rubric "Children Act" which shows that Mr Dutton, at least, was not under any misapprehension as to what question 9 was about.We are accordingly, driven to the conclusion that the explanation which is given for the critical conclusion in paragraph 27, that there was a difference between the ways in which the candidates were treated, is factually entirely wrong. For what it is worth there are questions among questions that were asked of the persons interviewed by the panel which, plainly are directed to questions of management and management technique, and at least one of those questions is one in which Miss Wallace scored significantly worse marks than Miss Harbour. It is question number 8:
"8How would you go about managing the allocation and monitoring of work and the development of staff in the most effective way?"
and that was marked 3 2 in favour of Miss Harbour by Mr Dutton; 2-1 in favour of Miss Harbour by Mrs Drysdale and 2 1 in favour of Miss Harbour by Mr Todd. Whether in fact that is what the Industrial Tribunal intended to refer to we are left entirely in doubt about. But the fact of the matter is that in relation to the central criticism of the panel's approach there is a very significant and indisputably established error of fact that, in our view, vitiates the conclusion.There are other aspects that give rise to anxiety in this Tribunal, but which by themselves, might perhaps not have been enough to warrant allowing this appeal. The two reasons that we have dealt with so far, do, in our view, warrant allowing this appeal but we think it is desirable that we should mention the other two matters. One is on the victimisation issue about which very little was said by the Industrial Tribunal but the central question, in relation to it on the evidence, was whether Mr Dutton was right in saying, as he did on oath, that he was unaware that Miss Wallace had previously brought an application to an industrial tribunal. Mrs Drysdale also said that there was no discussion of that fact in the half hour discussion, which it is common ground the three members of the panel, Mr Dutton, Mr Todd and Mrs Drysdale had before they saw the candidates. In relation to that the Industrial Tribunal said this in paragraph 24:
"Mr Dutton said that he was unaware that the Applicant had brought an application to an Industrial Tribunal. We find this surprising in the atmosphere of local government. The number of social workers was small. The number of black social workers even smaller. We were told that the number of applications to an Industrial Tribunal was very few. The panel members, we were told, met half an hour or so before the interviews started. Common sense would dictate that it is more than likely that some sort of discussion would have taken place about what was known of the candidates."
and that is all that is said at that stage. There is, it is true, the statement that I read earlier that the fact that Miss Wallace brought a complaint to an industrial tribunal in 1988 affected the decision of the interviewers. From this it could be inferred that the Industrial Tribunal disbelieved Mr Dutton's evidence, and indeed, by inference, Mrs Drysdale's evidence that this was not a matter that was discussed between the members of the panel. It seems to us that an industrial tribunal if it is finding as a fact, as it is perfectly entitled to do, that evidence on oath given to it by people occupying quite important and senior positions, should not be accepted, they should say so in terms and not leave it as an inference from what common sense might, or might not, dictate. It has to be remembered that not only the career and prospects of the Applicant are significantly affected by the outcome of these proceedings but also the professional expertise and standing of the respondent employer's employees, and if sadly, a criticism has to be made or evidence has to be disbelieved then it is, we feel, eminently desirable that it should be said so, and said so clearly. We emphasise that there is of course no question of there being any obligation on an industrial tribunal to believe what the witness says, more especially if he says it several times. They are perfectly entitled to disbelieve him but what they are not entitled to do is to disbelieve him without saying so.Finally, there is a much more marginal question concerning the length of experience and the qualifications of the two candidates, Miss Harbour and Miss Wallace. It is true enough that Miss Wallace had nursing experience which Miss Harbour did not have. On the other hand they both had been employed in social work for periods that only differed by one year, one starting in 1981 and the other starting 1982, and so far as qualifications are concerned they both had degrees, they both had the certificate that social workers commonly do have, CQSW, and which they had obtained immediately before they had respectively started their careers as social workers. There was, in fact, not a significant amount of difference in qualifications and unless one includes experience as a Nursing Sister, remarkably little difference in experience. If the Industrial Tribunal was relying on the nursing experience, and although not expressing the view that it was not legitimate for them to do so, it was certainly desirable, to put it no higher, to make it clear that this is the way they saw the matter. However, this is a much more marginal criticism and not a matter, which by itself, would have formed a ground for reversing the decision. The first two criticisms do come up to that standard and we therefore do propose to allow this appeal. There is no question, of course, of our substituting our judgment on the questions of whether there was, or was not, either racial discrimination or victimisation, and that means that unpalatable though it is, given the dates on which these events occurred, we shall have to remit the matter for a re-trial, we would suggest, before a different tribunal but we will hear submissions on that score. It does seem to us to follow, and we do not understand this to be challenged, that if, as we have held, the decision on racial discrimination cannot stand, that equally the decision on victimisation can not stand either. We therefore propose to allow the appeal on both scores.