Isonor v Department Of Social Security [1993] UKEAT 52_92_0707

EAT

Isonor v Department Of Social Security

[1993] UKEAT 52_92_0707 · 1993-07-07

MR JUSTICE KNOX: This is the judgment in the Preliminary Hearing which has the EAT reference

EAT/52/92

This is a review which I directed should be held in proceedings, the Industrial Tribunal number to which is 32222/90 between Mr Isonor, who is the Appellant, and the Department of Social Security. The proceedings at this stage are at the ex-parte preliminary hearing and therefore there is no appearance in respect of this matter on behalf of the Department of Social Security.

On the 15th January 1993, sitting with Mr Graham and Miss Whittingham, I gave a judgment dismissing Mr Isonor's appeal from a decision of the Industrial Tribunal at Birmingham which sat on the 23rd and 24th September and the 17th October 1991 and decided unanimously that Mr Isonor's application under the Race Relations Act 1976 should be dismissed.

Unfortunately, the Originating Application which was bound up in the bundle which this Tribunal had on that occasion was not the Originating Application in respect of which the appeal was launched. It was one which bore the same date and had a strong family resemblance but was not in identical terms with the Originating Application that Mr Isonor had presented against the Department of Social Security.

I made certain observations regarding the form of the Originating Application in the course of the judgment that I gave and when the mistake was pointed out to me, after the hearing was over and I had finished it by saying that the appeal was dismissed, it seemed to me that it was essential that an opportunity should be given to Mr Isonor to show cause why the Order that we made dismissing the appeal should be either reviewed, revoked or varied. The relevant Rule reads as follows, it is Rule 26 of the Employment Appeal Tribunal Rules Sub-rule (1) says:

"The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that - (a)the order was wrongly made as a result of an error on the part of the Tribunal or its staff." (b) is not relevant, a party not receiving proper notice and:

"(c)The interests of justice requires such review."

Sub-paragraph (3) is also relevant:

"A clerical mistake in any order arising from an accidental slip or omission may at any time be corrected by, or on the authority of, a judge or member."

I say that is relevant simply because there were, in fact, mistakes made, sadly, at practically every stage of Mr Isonor's matter. In particular, as I shall reveal in a moment, there were clerical mistakes made in the course of the Industrial Tribunal's own decision. But that sub-rule in Rule 26 allowing for clerical mistakes to be corrected is of course a reflection of a very long established practice in all courts, I imagine, and certainly in the High Court, where there is a rule allowing for just that. It is commonly called "the slip rule" and it recognises the sad fact that administrative or clerical errors are made and that they need to be corrected.

The issue that principally needs consideration on this review is whether there is a significant difference between the two forms of Originating Application, the one that was erroneously bound up in our bundle on the one hand, and the Originating Application in the matter in which there is the appeal on the other. Secondly, does any difference that may exist in those two Originating Applications influence in any way the result of the previous hearing which, as I have said, was that the appeal was dismissed.

Turning therefore, to the first point as to what if any difference there is between the two Originating Applications, the Originating Application in this case 32222/90 reads as follows, in the box that calls for full details of the complaint:

"On 9 August 1990 I took the designated Civil Service examination for an administrative officer and passed that examination.

On 22 August 1990 I attended an interview for the post, the object of my complaint, but was informed two days later that I had been unsuccessful.

Despite some discussion on my 11 years (1974 - 85) relevant experience with Cadbury's of Bournville, Birmingham, I believe that those interviewing me excluded me from further consideration for this post on racial grounds. I am a black Nigerian. There was no discussion regarding the salary, hours of work, holiday entitlement or other conditions of the job. In total the interview lasted no more than 10 to 15 minutes."

The other Originating Application, which was erroneously bound up in our bundle, read as follows in the same paragraph:

"Despite having 11 years relevant experience as an Administrative Assistant between 1974 and 1985 at Cadbury Schwepps, Bournville, Birmingham, I was not invited to an interview for the post, the subject of my complaint. In view of this relevant experience I believe that I was denied even the opportunity to compete for this job on the grounds of racial discrimination. I am a black Nigerian and believe this to be self evident from my name and place of birth."

It is plain on the face of it that there is a very strong family resemblance between the two complaints, they were in fact made against different bodies but the substance of the complaint is that there was racial discrimination in one case, in interviewing, and in another case being invited or not, as the case might be, to an interview. In both cases the allegation was a denial on racial grounds of the opportunity or the appointment to a proposed job.

The Industrial Tribunal dealt with the matter at some considerable length and went into the history of the matter. What is more significant for the questions that I posed a moment ago is whether the judgment that I gave on the 15th January 1993 is affected by the form of the Originating Application, when one looks at the right one. We have come to the conclusion that there is no substantive difference between the two. It is plain enough when one has the matter pointed out in detail that the Originating Application that we erroneously assumed was the appropriate one, is not entirely one that fits with either the Industrial Tribunal's decision or the arguments that were addressed to the Industrial Tribunal. But so far as the substance of the matter is concerned we are unable to see that the differences between the Originating Applications make any significant impact, either on the form of the argument that the case took before the Industrial Tribunal, which laboured under no such misapprehension as we did, or on the form of the judgment which I gave which did include that misapprehension but, in our view, was not to any significant extent affected by it. Accordingly, we would answer the question, "was there any significant difference the two Originating Applications?" in the negative, and that means of course, that the difference did not influence the result of the appeal.

However, we thought it right to allow Mr Isonor, who before us today appeared in person but on the previous occasion appeared through Counsel, to re-open the matters, which in fact were abandoned by his Counsel on the earlier occasion, and go back to the merits of the original appeal and if we understood his arguments aright (and in common with the Industrial Tribunal, we have had some difficulty in communication between him and us) they include the following. First of all he submitted, clearly rightly, that the Industrial Tribunal made an error in paragraph 25 of its decision when it referred to Section 4(2)(c) of the Race Relations Act 1976 and quoted it. That paragraph reads:

"It is unlawful for a person, in relation to employment by him in an establishment in Great Britain, to discriminate against another by dismissing him".

The quotation by the Industrial Tribunal finished there, in fact the paragraph continues:

"or subjecting him to any other detriment."

and the Industrial Tribunal went on to pose this question:

"Did this dismissal amount to such discrimination?"

Now, it is clear at first sight that that is entirely irrelevant because there never was any question of any dismissal in this case. It was plain to all concerned and in particular to the Industrial Tribunal that what Mr Isonor was complaining about was that he didn't get the job in the first place and therefore there never was any question of there being a dismissal. That, in our view, is absolutely plain from the rest of the Industrial Tribunal's decision. We refer to two passages that make it abundantly clear. First of all in paragraph 10 the Industrial Tribunal said this:

"We remind ourselves that Mr Isonor's complaint relates to his failure to be appointed to the post of an Administrative Officer."

and then they go on to deal with what their conclusions were in regard to the evidence on that score. No question of course of dismissal, no question of Section 4(2)(c) of the Race Relations Act but clearly an issue that arose under Section 4(1)(a) of the same Act.

The other passage which makes that equally clear, in our view, is the passage at the end of the decision which states their ultimate conclusion. After making some criticisms of the way in which the preparation for and conduct of the interview was carried out, the Industrial Tribunal said this:

"Fortunately that confusion did not arise in this case. We find that the applicant was not discriminated against on racial grounds when he was unsuccessful in his application for employment as an Administrative Officer with the Department of Social Security."

In our view it is abundantly clear from those two passages in particular but from the decision as a whole that that reference to Section 4(2)(c) is no more than a clerical error. It is an unfortunate slip we would undoubtedly accept, but it is not a mistake that has any operative effect. The passage that I read from the review rule makes it clear, if it is not otherwise clear, that mistakes of a clerical nature, which have no operative effect if need be can be cured and in those circumstances, it is not a ground for reversing the decision of the Industrial Tribunal, that on the way to its conclusion, by a mistake, they referred to an inappropriate Section, given that it is clear that they had the proper Section in mind and addressed the appropriate questions in relation to it.

Secondly, Mr Isonor raised another point which his Counsel at the earlier hearing, in common with that point that we have just dealt with, did not pursue, wisely as we think, and this was that it was said by the Industrial Tribunal that the applications that were made for the positions that were available were fewer in number than the number of positions that were available and on that basis it was only a question of whether the Applicants achieve a perceived minimum standard for the particular category. There were two categories, Administrative Officer and Administrative Assistant. It was not so much a question of whether one was better than another. The Industrial Tribunal on that score said this in paragraph 2 of their decision:

"Accordingly, until after the interviews had taken place, the applicants for the posts were not, as it were, competing among themselves, but were required to achieve a particular perceived standard. We find on the evidence that the matter was never taken any further than that so far as Mr Isonor was concerned for two reasons. The first, that he did not achieve the minimum perceived standard and secondly, there were only 4 applicants who did achieve that standard and there were 7 vacancies. At no stage can it be said that the applicants for the Administrative Officers jobs were competing with one another for the available posts."

Mr Isonor submitted, plainly rightly, that the fact that there was no competition element did not of itself prevent there being, in principle, an infringement of the Race Relations Act and we have no difficulty in accepting that proposition. But the fact is that neither the Industrial Tribunal nor this Tribunal, in dealing with the appeal at the earlier hearing in any way challenged such proposition. The fact that there was no competition, in the sense described, is no doubt a relevant fact but it isn't of itself conclusive that there was no discrimination contrary to the Act, nor did the Industrial Tribunal say so, and in those circumstances it seems to us that the point is, although valid, an irrelevance to the validity or invalidity of the decision.

Mr Isonor also submitted to us, on a variety of grounds, that the decision of the Industrial Tribunal was perverse. This is not a matter that was raised by the Notice of Appeal in this case and we are quite clear that it is not a matter which stands any chance of success on the material that is before us. There were of course many findings of fact that were made by the Industrial Tribunal. My earlier judgment deals with some of them and I do not repeat them now. Many of them, Mr Isonor would, if he were in a position to do so, challenge because he does not accept, I think it would be right to say, even the honesty of the way in which the matter has been dealt with. But the fact of the matter is that this Tribunal which only has jurisdiction in relation to points of law is bound by the findings of fact of the Industrial Tribunal below and although it is well settled that if there is a genuine case of perversity, in the technical sense that does raise a question of law, we were quite unable to detect any basis upon which one could attack this Industrial Tribunal decision, which was a long and painstaking one, on the basis of perversity. Doubtless there was room for differences of opinion, and doubtless those differences of opinion subsist to this day, but that of course does not create perversity which is only achieved if it is possible to say that there is no basis upon which the Industrial Tribunal, properly instructed, could reach the conclusion that it did reach on questions of fact and that very high test is not even approached in this case.

The other grounds that Mr Isonor advanced in support of his appeal, equally in our view, did not require us to either reverse or vary the decision that was reached in January of this year. On that basis, and even taking account of the additional arguments that were advanced by Mr Isonor and which were not advanced on the earlier occasion, we see no reason to depart from the decision that we reached on that occasion and on that basis this appeal will be dismissed.