Qureshi v Burnley Borough Council [1993] UKEAT 916_92_1307

EAT
Qureshi v Burnley Borough Council
[1993] UKEAT 916_92_1307 · 1993-07-13
MR JUSTICE KNOX: We have before us two appeals in proceedings that started by an Originating Application by Mr Qureshi against the Burnley Borough Council in which the type of complaint that Mr Qureshi advanced was whether his treatment amounted to a breach of the Race Relations Act 1976 . The bones of the history of the matter factually are that Mr Qureshi was taken on by the Respondents, the Burnley Borough Council, in a department they set up to deal with the administration of the community charge, in late 1989. His salary was at scale 2, and not very long after he was first taken on there was an application made by the lady who was immediately his superior, who was expecting a child, for maternity leave to take effect in April 1991. She applied for that in early 1991. That created a gap in the structure which needed to be filled while she was away and this was filled internally by the department. The officer who appears to have been in charge of this process of selection was a Mr Evans, who is described as a Chief Income Officer in the Borough Treasurer's Department. The Borough Council had previously adopted a Code of Practice on fair recruitment and selection but it did not follow its precepts which were quite detailed and in particular were to apply to all vacancies, both temporary and permanent, when this temporary vacancy occurred. There was a different process embarked upon. The Industrial Tribunal found that four officers were identified as being potentially suitable replacements and two of them were quickly eliminated. The remaining two were both considered capable of doing the job efficiently and Mr Evans, who gave evidence in the proceedings that ensued between Mr Qureshi and the Borough Council, said in his evidence with regard to that process that no interviews for this position were held. The Industrial Tribunal did not accept his evidence on that score, at any rate so far as it went to saying that he offered the same facility of a meeting which he accepted he had had with one of the candidates, in fact a woman, to the other candidate, a man. The Industrial Tribunal expressed its finding on this score as follows:
"We were satisfied that both these candidates were interviewed for this post by Mr Evans. Having conducted the interviews he decided to appoint the male person to this position and he was duly appointed."
That is of peripheral interest to this particular set of proceedings because they are concerned with, not the filling of that temporary vacancy, but with the knock-on effect of that vacancy, which was that a temporary vacancy was created one step down in the pyramid for a period of twelve months for a clerical/administrative officer on scale 2/3.Here again, however, the Code of Practice was not followed by the Borough Council and the Industrial Tribunal gave details as to the extent to which it was departed from when it said this:
"The vacancy was not advertised in writing, no Job Specification and Person Specification was prepared specifically for this job and no responsible officer and master file were created."
All those things were required to be done by the Code of Practice. to.It is in relation to this second temporary vacancy that the issues in these proceedings arose. The Industrial Tribunal found that on the 16th April 1991, Mr Qureshi, the Applicant, was contacted by telephone by Mr Evans and was told by Mr Evans that there was this temporary vacancy and he was asked whether he was interested in being considered for it, to which he said "yes". The Industrial Tribunal then said:
"We were satisfied that Mr Evans then informed him that he would contact him later that day for a `chat' about the matter. However he did not contact the applicant any further on that day about that matter."
Then Mr Evans contacted Mr Qureshi's superiors and they expressed the view that not only Mr Qureshi, but also a Mr Ormerod, who had joined a little later than Mr Qureshi but was on the same salary scale although a couple of points lower on the incremental scale, could fill the vacancy, and so Mr Evans contacted Mr Ormerod, asked him whether he wished to be considered and Mr Ormerod said he did. Then Mr Evans was found to have done some more consultation with the superiors of Mr Qureshi and Mr Ormerod and the Industrial Tribunal says this:
"They [the superiors, a Mr Lees and Mr Fraser] told him [Mr Evans] that although the applicant and Mr Ormerod were able to carry out the duties equally well, Mr Ormerod was a more enthusiastic officer than the applicant. Mr Evans, having spoken to Mr Lees and Mr Fraser, decided to offer the post to Mr Ormerod. On 17 April Mr Ormerod was invited to Mr Evans' office where Mr Evans informed him that he was being given this temporary post."
and the Applicant was told that news by Mr Lees later that same day.Mr Qureshi was not at all pleased about this and he proceeded to invoke the complaints procedure, the first stage of which was that he went to see Mr Evans to ask why he had not been successful. One of the things that Mr Evans said to him was that:

"the applicant, [Mr Qureshi] might be said to have a `laid-back approach'."

and so Mr Qureshi, perhaps not altogether surprisingly, was not satisfied with this explanation and he wrote a long letter to the Borough Treasurer complaining that he had been unfairly treated and specifically quoting that Mr Evans had made this point that he might have had a "laid-back approach" in his present post and summarising his complaints by saying:
"I feel that the decision was made using an unfair method and discrimination has taken place against me because of my colour. I believe that Mr Evans wanted to keep a black face for counter duties, public relations. This has been done at expense of my career prospects. I am totally horrified at Mr Evans' decision."
There is of course no doubt that Mr Qureshi is black.The Borough Treasurer then had an interview with Mr Qureshi and wrote back an extremely long letter setting out how he saw the matter from the Borough Council's point of view. That did not satisfy Mr Qureshi and he had the complaint investigated before a panel of Councillors who heard that complaint and identified, correctly, that the Code of Practice had been departed from in the appointment process. But, they found that discrimination had not been found to have taken place on the grounds of Mr Qureshi's colour or race and therefore his complaint was not upheld. That led to the Originating Application that I have already mentioned. It was presented on 8th July 1991.The Industrial Tribunal set out the early history when they came to hear the application on the 13th and 14th May 1992.

(a) of the same Act which provides that:

"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another in the arrangements he makes for the purpose of determining who should be offered that employment."
and they also quoted Section 4(2) which proscribes discrimination against employees in relation to the terms of employment afforded to them or in relation to access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford the employees access to them.The Industrial Tribunal reminded itself of certain well known authorities, notably, Khanna v. Ministry of Defence [1981] IRLR 331, and stated their conclusion in paragraph 13 of their decision. What they said was this:
"There was no dispute that the applicant is black and was unsuccessful in applying for the temporary post. The successful candidate was a white person. He was on the same salary scale as the applicant although on a slightly lesser salary and had entered the respondents' employment after the applicant. We were satisfied that neither Mr Ormerod (the successful candidate) nor the applicant had been the subject of any disciplinary proceedings regarding their work performance or conduct throughout their period of employment. Both of them were carrying out similar duties in the same section of the department in which they were employed when the vacancy arose and, according to the respondents' evidence, both the applicant and Mr Ormerod were considered capable of doing the duties of the temporary post well. It was not in dispute that the respondents' failed to carry out the provisions of their own Code of Practice on Fair Recruitment and Selection when they decided to fill the temporary post in the way that they did and when the white candidate, Mr Ormerod, was successful. Furthermore when two white candidates had been considered for the more senior temporary vacancy at this time both had been interviewed for the post by the officer responsible for appointment. We were satisfied that all the primary facts pointed to discrimination of some kind having been carried out when the applicant failed to obtain the temporary post for which he had applied. We therefore examined the explanations given by the respondents for their failure to apply to the applicant and the other candidate the procedures of their Code of Practice on Fair Selection and Recruitment. We bore in mind that the Code of Practice had been specifically introduced during 1990 to guard against the use of subjective criteria which were used in the present case. We were far from satisfied that the explanation given by the respondents that their failure to apply that Code of Practice was a reasonable one. Indeed we found the reasons given to us in evidence for not applying it were not credible. We also bore in mind that the answers which the respondents had given to some of the questions posed to them by the questionnaire and supplemental questions submitted in advance of these proceedings by those acting on behalf of the applicant under the provisions of the 1976 Act were inconsistent with some of the answers given by the respondents' witnesses, particularly those given by Mr Evans in his evidence to us. We found the respondents' explanation for what had taken place totally unsatisfactory. In these circumstance we drew the inference, which to us was inescapable, that the respondents had unlawfully discriminated against the applicant on racial grounds in the arrangements they had made for the purposes of determining who should be offered the employment for the temporary vacancy of scale 2/3 and in the way they afforded him access to that opportunity for promotion. We were further satisfied that by failing to carry out the provisions of their own Code of Practice they had subjected him to a detriment, ie it had been to his disadvantage. We therefore found that the applicant's [Mr Qureshi] complaint was well-founded."
In saying that it was not in dispute that there had been no disciplinary proceedings against either Mr Ormerod or Mr Qureshi the Industrial Tribunal was entirely correct. What there had been though, on their own findings, was a dispute on the evidence about some criticisms that it was said by the Borough Council's witnesses had been levelled at Mr Qureshi. In an earlier part of the decision one finds this:
"In their evidence to us a number of the respondents' witnesses stated that during his employment with the respondents one of his [Mr Qureshi] supervisors had spoken to him on 3 separate occasions about his conduct. It was stated that shortly after his appointment this supervisor had spoken to him about an unwillingness on his part to take instructions from female members of staff. It was further stated that during the summer of 1990 the supervisor had also spoken to him about being engaged in social conversation with other employees of another department working hours, and further that in late 1990 the supervisor had also spoken to him about spending a lot of his time in another office engaged in conversations unrelated to his work."
Those criticisms had been denied by Mr Qureshi in evidence to the Industrial Tribunal and the Industrial Tribunal found in his favour on that issue saying:
"We were satisfied that he had never shown unwillingness to take order from female members of staff and that he had not, during working hours, been engaged in social conversations in another department of the Council nor had he spent a period of his time during working hours in late 1990 in another office on having conversations unrelated to his work."
and indeed at the very outset of their dealing with the facts of this particular case, they had said that, having heard the witnesses, which included Mr Evans on one side and Mr Qureshi on the other, they preferred the evidence of Mr Qureshi where there was a conflict between his evidence and that of the Respondents' witnesses. That is in paragraph 7 of their original decision.Before that original decision was sent to the parties, which was on the 13th August 1992, there had been submitted to the Industrial Tribunal an application for a review on behalf of the Borough Council. A letter was sent by their Chief Executive which said, amongst other things:
"It has come to my attention that the applicant has admitted, on two separate occasions and to separate Members of the Council's staff, that he lied on oath at the hearing. The matters about which he lied (there were three admitted to) may or may not have a bearing on the tribunal's decision."
That was considered by the Industrial Tribunal which eventually came to the conclusion that it would be right for it, notwithstanding that it had not yet sent to the parties its original decision, to give its decision on matters as they stood before the new tendered evidence was considered. That led to a formal request for a review after the original decision was sent to the parties on the 13th August and the formal request was on the 18th August and it was supported by statements that were proposed to be made by the two witnesses who deposed to these confessions. The statements by those two witnesses, one of whom was Mr Ormerod, the successful candidate, the other of whom was a gentleman called Robert Charles Steeples, are in our papers and those proofs of evidence reveal, effectively, two separate subjects of criticism of Mr Qureshi, one was that Mr Ormerod had been talking to Mr Qureshi and had asked him why he had lied under oath about the incidents in which his supervisors had spoken to him about his behaviour when Mr Ormerod said that Mr Qureshi admitted that the incidents relating to social conversations in the office and the reprimand by Debra Stopforth about his unwillingness to take orders from female staff had taken place, he said "that other people had lied and why shouldn't he", and later made references to his evidence "only being on the Bible".Mr Steeples' statement was to the effect that Mr Qureshi was a practising, or at any rate, an observing Muslim, and that he also had had a conversation shortly after the Tribunal hearing with Mr Qureshi in the course of which Mr Qureshi had said:
"that at the Tribunal he had taken the oath on the Bible and could therefore say whatever was appropriate in the circumstances. He knew that the others would all lie during the case and had decided that it was therefore only fair if he was able to lie: the important part was that he would be able to get his point across first."
Faced with that testimony the Industrial Tribunal decided that it would be right to grant a hearing for it to decide whether to review its earlier decision and in the course of that review hearing they found, as one would expect, that there was a conflict of evidence between the witnesses for the Borough Council, namely Mr Ormerod and Mr Steeples, whose statements I have read extracts from, on the one hand, and Mr Qureshi on the other. Their conclusion having heard those witnesses being examined before them was this:
"Having heard each of these witnesses, including the applicant, give their evidence, and having observed their demeanour in the witness box when giving evidence in chief and under cross-examination, we were satisfied that shortly after the hearing which had taken place before the Industrial Tribunal in May 1992 the applicant had admitted to Mr Ormerod in a conversation with him that he had lied about certain matters in his evidence to the Industrial Tribunal. We were also satisfied that he had also admitted to Mr Steeples, who was employed in the same Borough Treasurer's Department in which the applicant was employed, that he had been less than frank when giving evidence about his religious beliefs."
They then set out Rule 10 of the Industrial Tribunals (Rules of Procedure) Regulations 1985 and stated their conclusion on the review application in the following relatively short paragraph:
"As our findings of fact which had led to our decision had been made after preferring, wherever there was a conflict of evidence, the evidence of the applicant to that of the respondents' witnesses and we were now satisfied that he had admitted to one witness following the hearing before us that he lied abut certain matters in his evidence and had admitted to another employee of the respondents that he had been less than frank in his evidence about religious beliefs, we were satisfied that the interests of justice required a review of our decision. We therefore granted the respondents' application for a review and ordered that our Reserved Decision be revoked and that the applicant's complaint be reheard before a differently-constituted Tribunal."
The two appeals before us are, first of all, an appeal by Mr Qureshi against that decision to grant a review and revoke the earlier decision and secondly an appeal by the Borough Council against the original decision that was reached in the decision that was sent to the parties in August 1992. It will be convenient to deal with the first of those first.Mr Baxter, for Mr Qureshi, submitted two main points to us. First of all, that it was important as a general principle that there should be an end to litigation and that the witnesses having all been examined on the hearing of the main decision, it was not in principle right to go back on the findings that the Industrial Tribunal made after considering all the oral and documentary evidence before it. We are quite unable to accept that submission. Of course we accept that there is a well known principle that it is for the general public benefit that there should be an end to litigation but that is subject to, notably, the provisions for reviews of decisions which of course cut right across the principle that once a case has been decided it cannot be re-opened. The very existence of the review jurisdiction shows that that principle is not a universal one. Moreover, on the face of the regulations one of the classic examples where a review can properly be directed is where new evidence, not previously available, is discovered. That seems to us to be indistinguishable in principle from the discovery that some of the evidence that has been given at the earlier hearing is unreliable, to put it no higher. We can see no difference in principle between another witness being found who was not available at the original hearing, whose evidence has the effect of undermining the earlier decision, on the one hand, and the discovery, whether by admission or by other means, that the evidence that a witness who did appear at the original hearing, has given false evidence. Therefore, as a matter of principle it seems to us that there is no bar to the order of a review on discovery that the evidence that was earlier given cannot be relied upon. The second of Mr Baxter's points was that the evidence that was shown to be wrong by what occurred before the Industrial Tribunal in its review hearing has little or no impact on the findings that were made by the Industrial Tribunal on the primary facts, as they were described, which were far more concerned with the deficiencies in the evidence given on behalf of the Borough Council than they were with the positive points concerning Mr Qureshi's evidence. Paragraph 13 in which the Industrial Tribunal's decision is effectively given has already been read and it is undoubtedly true, that the main emphasis in that paragraph was upon the inability of the Borough Council's witnesses to satisfy the Industrial Tribunal that there was a reasonable excuse for the primary facts which, as the Industrial Tribunal had found, pointed to discrimination of some kind having been carried out. The question, however, in our view is whether the Industrial Tribunal, in coming to its conclusion on review, had any material upon which it could reach the conclusion that it clearly did reach. That conclusion is incontrovertibly to the effect that the witnesses' testimony having now been shown to be less than frank, and including lies, there was a seriously adverse effect on the findings of fact which had previously been made which included a preference for Mr Qureshi's evidence to that of the Borough Council's witnesses. There is, therefore, in our view, no doubt that the Industrial Tribunal came to the conclusion that what they discovered on the review did have a very important effect, at least potentially, on their decision in the earlier main hearing and the question as we see it for us is whether there is any material upon which they could reasonably come to that conclusion because it is not for us to substitute our view on whether a review should be granted or not.We are satisfied that there was material upon which they could properly come to that conclusion. There was a conflict of evidence about the question of whether there was a promise of a "chat" to Mr Qureshi which, contrary to the evidence that Mr Evans gave, Mr Qureshi claimed had been promised to him and Mr Evans had denied such a promise. That has two potential effects. First, the preference for Mr Qureshi's testimony on that score, no doubt was susceptible of rubbing off on the evaluation that the Industrial Tribunal made of the rest of Mr Evans' testimony. It is very difficult to be sure how far in preferring the evidence of one witness to that of another on one point a tribunal is influenced in rejecting the evidence of the latter witnesses on other different points. But it is a matter almost of commonsense that if one disbelieves a particular witness on one issue, one may well be influenced in one's assessment of his testimony on another issue and if the Industrial Tribunal had rejected Mr Qureshi's evidence, that in our view, could well have impinged on the credibility of the explanation that the witnesses for the Borough Council, notably Mr Evans, gave for their admitted departures from their own Code of Practice. Secondly, there is the question of how far the criticisms that the Industrial Tribunal had found were unfairly and inaccurately levelled at Mr Qureshi, if shown to be justified, could have influenced their assessment of the explanation of the choice of Mr Ormerod rather than Mr Qureshi for the temporary post in question.Those are three matters which it seems to us are matters which the Industrial Tribunal could properly have taken into account in reaching the conclusion that their earlier decision was rendered unsafe by the undermining of Mr Qureshi's credibility.That, in our view, is enough to dispose of that first appeal. We have not referred to the authorities to which we were taken because none of them seems to us to come at all close to the present case. The nearest approach seems to us to be Ladup Ltd v. Barnes [1982] IRLR 7 in which it was held that a conviction for possessing cannabis recorded against an employee after an industrial tribunal proceeding that found that he had been unfairly dismissed in relation to facts, with which the subsequent conviction was concerned was matter which warranted a review and that was described as a contention, by Mr Justice Bristow at page 8, which was quite unanswerable. It shows, if it needs showing, that there can be a revelation after the hearing of an industrial tribunal proceeding of a circumstance which casts light, in this case a very bright light, on the credibility of one or other of the witnesses to those earlier proceedings. In that case of course the dismissal was not thereby made fair because the finding was that the employers had, to use a colloquialism "jumped the gun" but the effect was limited to reducing by 100% the compensatory award in favour of the successful employee. Mr Baxter relied on that case as authority for the proposition that the effect of the subsequent event or discovery needed to be fundamental and his submission was that the effect in this case, of what was found out about Mr Qureshi, was very far from fundamental but in fact left the primary facts untouched. As already indicated it seems to us that the answer to that submission is that if the original decision is shown to be unsafe it is legitimate for an industrial tribunal to reach the conclusion that a review should be granted and the earlier decision revoked. It must, of course, in every case be a matter for judgment for the body granting the review. But if there is material upon which a review can be granted it is not for this Tribunal to interfere with that decision.That appeal therefore will be dismissed.The second appeal is brought by the Borough Council against the original decision that there was racial discrimination and that is based on the proposition that the primary facts, which I need not repeat, do not in fact, on examination, reveal a difference in the treatment falling within Section 1(1)(a) of the Race Relations Act 1976 which defines discrimination as occurring if, on racial grounds, the discriminator treats the person who is discriminated against, less favourably than he treats or would treat other persons. It was submitted to us on behalf of the Borough Council by Mr Hull that if one looked at what the Industrial Tribunal had actually decided there were no inequalities of treatment of that sort as between Mr Ormerod on the one hand and Mr Qureshi on the other. It seems to us that Mr Hull's argument is in some considerable difficulty due to his successful resistance of the appeal on the first ground because, if, as we are satisfied, the edifice upon which the Industrial Tribunal placed its original decision, that there had been racial discrimination, is significantly, if not altogether, dismantled as a result of the undermining of Mr Qureshi's evidence, it is difficult to resist the conclusion that that same process of undermining may have an adverse effect on the findings which, on the analysis that Mr Hull penetratingly made of what they decided the first time round, produced the result, which on his submission, should have been a decision in favour of the Borough Council rather than in favour of Mr Qureshi which is what it was.It seems to us that having destroyed the sandcastle on the first appeal it is difficult for Mr Hull to build any safe structure on the self same sandcastle in deciding how the decision should have gone by the Industrial Tribunal in the first place. That means, in our view, that that appeal too falls to be dismissed and the matter will therefore, we fear, have to go back to a differently constituted Tribunal in accordance with the Industrial Tribunal's decision on review.