Hagans v St Mary & St John J & I School [1994] UKEAT 213_92_1304

EAT
Hagans v St Mary & St John J & I School
[1994] UKEAT 213_92_1304 · 1994-04-13
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at Birmingham for five days in November and December 1991. For Reasons notified to the parties on the 30th January 1992 the majority of the Tribunal held that a complaint of racial discrimination was not well founded. The Applicant in the proceedings was Mr P Hagans. The Respondents were the Chairman and Governors of a school, St Mary and St John Junior & Infants School.Mr Hagans was dissatisfied with the decision and he decided to appeal. The grounds of his appeal are set out in the Notice of Appeal dated 28th February 1992.The facts found by the Tribunal are set out in great detail in the decision. It is unnecessary for the purposes of this appeal to go into many of the details. We will concentrate on those facts most relevant to the points argued on the appeal.The Tribunal summarised Mr Hagans' complaint in this way: that the respondent Chairman and Governors had treated him less favourably than they treated or would treat other persons, in particular, the successful applicant for the position of a school caretaker, Mr Fegan, in relation to the application for that post at the school in October and November 1990.The appointment was made by the Respondents. They comprise six Foundation Governors appointed by the diocese; a Parent Governor who has no vote; and two Governors appointed by the Local Education Authority. The Governors appoint the Chairman. He was the Parish Priest, Father Joyce. The School was mainly Catholic with 450 pupils. The Parish comprised about 1,200 families. That is 6,000 people, half of whom were Irish. About half of the teaching staff in the School are Irish.The Diocesan Guidelines on equal opportunities stated as follows:
"In general terms, Governors of Catholic Schools should not discriminate on grounds of sex, race, colour, nationality, ethnic origin or disability but should reserve the right to take account of religion, avowed personal conviction, belief or behaviour."
The Tribunal noted in the first paragraph of its decision that no one involved in the selection process appears to have appreciated that there was a potential race discrimination situation. Accordingly, no precautions were taken. The document and the draft Equal Opportunities Statement with it were not referred to at any stage, nor was the Code of Practice.The applicants for the position of School Caretaker were reduced to a short list of three. One was Mr Fegan, and the other Mr Hagans, the Applicant, and Mr Sturgess was the third. Mr Hagans and Mr Sturgess, had experience as school caretakers and relevant training. Mr Fegan did not. Mr Fegan is Irish, Father Joyce is Irish. Some, if not most, of the Governors were Irish. The proceedings were brought about because it was Mr Hagans' belief that the reason why Mr Fegan was successful and he was unsuccessful was that Mr Fegan was Irish.The Tribunal commented that it was not immediately apparent why Mr Fegan was successful, let alone why he was short listed. His application had a surprisingly sympathetic reception, amounting, the Tribunal thought, to more favourable treatment. Mr Fegan was known to Father Joyce and some of the other Governors. The Tribunal commented that the main problem in the case was to decide whether it was proper to infer that the more favourable treatment he received was on racial grounds. The Respondent said that Mr Fegan was chosen because he was the best person for the job, regardless of his religion or race. The task of the Tribunal was to examine the facts in detail, be prepared to draw the proper inferences from them and reach a conclusion whether there was racial discrimination established contrary to Section 1 of the 1975 Act . If there was differential treatment and a possibility that it was on racial grounds, it was legitimate for the Tribunal to infer that it was on racial grounds unless there was a good explanation for the favourable treatment. The Tribunal correctly relied for guidance on this point on the law as stated by the Court of Appeal in King v. Great Britain China Centre [1991] IRLR 513 .Having set the scene for their decision the Tribunal dealt with the evidence. Mr Hagans was Catholic, though not a regular churchgoer. His name was Irish. Though the interviewing panel did not know it, Mr Hagans' father was Irish, but Mr Hagan was born in England and he regarded himself as English. The Tribunal commented that:
"The antecedents of someone of Irish parentage not brought up in Ireland are not likely to be material and we have accepted that any necessary racial difference exists to sustain the complaint."
The Tribunal dealt with the impressive qualifications and experience of Mr Hagans and compared his qualifications and experience to that of Mr Sturgess, who was also a Catholic, and that of Mr Fegan. The Tribunal made comments on the shortcomings of Mr Fegan's application form and on his relative lack of experience, training and qualifications.After reviewing the evidence in the next twenty paragraphs or so, the Tribunal came to the crucial parts of its decision in paragraph 23 and onwards. The Tribunal in paragraph 23 made general comments on the nature of the responsibilities of a caretaker in current conditions and the sort of qualities required. They pointed out that training and experience were not the be all and end all of the matter. Ability to fit in, in the sense of being able to relate to other people and got on well with them were also matters that would be relevant in deciding who to select. The Tribunal commented in paragraph 24:
"The advertisement for the post might well have said something like: `This is a Church School. Religious faith not insisted on but there will be extra duties in connection with religious observances and meeting held out of hours. Preference will be given to a candidate who undertakes voluntary caring work in the community, who is a handyman, willing to do repairs, and who intends to stay. Ability to fit in an get on well with others important. BSS training and previous school caretaking experience not essential'. On the evidence this describes the criteria which the respondents in fact used, not all referred to in the questionnaire reply on the point."
A questionnaire had been sent to the Respondents and completed by them. It was attached to the Notice of Appearance in these proceedings.The Tribunal stated their decision, as far as the majority were concerned, in these terms:
"26. there is abundant evidence that the respondents simply chose the person they considered the best for the job, on their own criteria, and there is no justification for an inference that racial reasons had anything to do with the choice, even unconsciously. Testing this by considering whether it might have made a difference for Mr Hegans to be Irish or Mr Fegan English, there is no reason to suppose that it would. The dominant factors in the choice were the use of criteria additional to experience and training, and the limited role allowed to experience and training. Once a candidate seemed able enough to do the job the other criteria decided the outcome; Mr Young and Mr Clarke would probably expect a final choice to be made on parish criteria from a short list of those with the best job qualifications, but that is not what happened."
In paragraph 27 the view of the minority member is stated. The minority:
"while agreeing that there was no intentional discrimination and that the discrimination commenced prior to and/or in the shortlisting, takes the view that there was unconscious discrimination on racial grounds because of the Irishness of those who made the decision to appoint Mr Fegan to the post. It is likely that Father Joyce in particular recognised characteristics in Mr Fegan, akin to those of a subservient nature inherent in one brought up in a rural parish in Eire. This is not to be decried as Father Joyce would know instinctively that such an Irish individual would be perfect for the job in question. However, it does unfortunately produce unconscious racial discrimination."
The minority member pointed out that precautions had not been taken to guard against this as recommended by the Code of Practice and in Equal Opportunities training. None of those matters had been addressed prior to the appointment. The minority member concluded, as a matter of probability, that with a mainly Irish selection panel choosing an inexperienced and untrained Irish candidate in preference to two others who were clearly much better qualified, in terms of job requirements, Mr Fegan was treated more favourably on racial grounds.The Tribunal concluded by mentioning a point which had arisen on an earlier incident where a Scottish teacher had had her job taken away from her at the School, in favour of an Irish teacher, recruited by the Head by word of mouth in Ireland. It was argued that this might show a discriminatory attitude at the School and that could be a consideration in the case brought by Mr Hagans. The Tribunal commented that there was more to the matter than the teacher had realised and that the Head Teacher had an explanation which appeared to be plausible.The Tribunal completed their decision by saying that they could not attach material weight to that incident in connection with the present case. Their comment was:
"how easily situations can arise in which people feel deeply that they have been discriminated against on racial grounds, and the importance for employers to do what they can to avoid such situations. In this case it would have helped if the selection criteria had been defined in advance and candidates informed of them, and to give attention to the composition of the selection panel, as advised in the Diocesan Guidelines."
A number of submissions have been made by Mr Whitmore in support of his argument, on behalf of Mr Hagans, that there were errors of law in this decision. He submitted that, in general terms, the appeal concerned what inference should have been drawn by the Tribunal from the primary facts. He pointed out correctly that the approach to this question is as laid down by the Court of Appeal in the case of King v. Great Britain China Centre [1991] IRLR 513 . It is a matter for a tribunal to decide on the evidence whether or not to infer that there was discrimination on racial grounds. In the present case, he submitted, the circumstances pointed to the need for an explanation by the Respondents. That is clearly right. The facts show that there was a selection panel with a strong Irish composition; that the candidate chosen, Mr Fegan, was an inexperienced, untrained Irish candidate; and that Mr Hagans was much better qualified, on paper, and had greater experience, but was turned down for the job.The question for the Tribunal was, therefore, whether an explanation had been given to the Tribunal which the Tribunal would accept. If the Tribunal did not accept it, it would be entitled to infer that there had been discrimination on racial grounds.With those general comments Mr Whitmore went to one specific matter which formed an important part of his submission. His submission was that, during the conduct of the hearing, the Chairman had expressed himself and had acted in a way which displayed bias against the Applicant and a misunderstanding as to the relevant law. The incidents relied upon are dealt with in an affidavit sworn by Mr Whitmore on the 17th March 1992. We have the benefit of comments on that affidavit from the Chairman. In his affidavit Mr Whitmore says that during the course of the proceedings the Chairman interrupted Mr Whitmore's cross-examination of a witness saying:

"I am not interested in whether there was an equal opportunity policy."

When the Chairman made that remark Mr Whitmore asked him to make a note of his statement. The Chairman refused, adding perhaps he should not have said what he did. There was, by this time, a tense atmosphere in the Tribunal. There was an adjournment for lunch. Immediately after lunch Mr Whitmore made an application for the Tribunal to recuse itself on the grounds of bias. The Chairman replied, without consulting his colleagues:"suppose I refuse it".and then asked for a response from the solicitor who was appearing for the Respondents. The Panel retired. When they came back they indicated that they decided that it was proper to carry on with the case. The Chairman commented that he did indicate that he had said something he had regretted.Later Mr Whitmore asked the Tribunal for a ruling as to whether the Tribunal were saying that evidence as to whether or not there was an Equal Opportunity Policy was inadmissible. The Chairman's reply was:"I do not see how whether there was an Equal Opportunity Policy is going to affect our decision one way or another. It is not a thing which will assist. We won't refuse to hear it but it is a question of how much time we will spend on it".The final matter commented on by Mr Whitmore, but not relied on to any great extent on his appeal, was:
"At various times during the course of the proceedings the Chairman appeared to stop taking notes during my cross examination of the Respondents witnesses."
The Chairman was shown Mr Whitmore's affidavit. He has produced comments in a document dated 30th April 1992.The Chairman makes a number of points in his comments. The first was that:
"Mr Whitmore spent much time in cross-examination on background matters which were not in dispute. It was clear from an early stage that the Governors [the Respondents] had had no race relations training and that they had not addressed the subject of race discrimination."
He dealt with what had happened to give rise to the comments that he made on the fourth day of the hearing when Mr Whitmore was cross-examining one of the Governors who was giving evidence for the Respondents:
"Mr Whitmore asked for her opinion on a preceding witness's opinion about having a race relations policy. There had been previous objection to Mr Whitmore's practice of asking witnesses for opinions, and Mr Taberner, the respondents' solicitor, rose to protest. I [the Chairman] said that the Tribunal wanted facts and, in an effort to discourage further time on the topic, I said that the Tribunal was not interested in whether the Governors had an equal opportunities policy. It was a matter of which the position was already well established and not in dispute.
Mr Whitmore then alluded to an occasion with a previous witness, when I had said that I did not see how questions about the existence of an equal opportunities policy helped the Tribunal to answer the question it had to put to itself (whether it was on racial grounds that the successful applicant for the post had received more favourable treatment). Mr Whitmore asked me to make a note, as I heard him, of his objection. [In his view] He had not made an objection as such, and I did not understand what his objection was."He dealt with the point that Mr Whitmore had put, that - the Chairman should disqualify himself for bias - and how that was handled. He commented finally that he believed, from the voluminous notes that he had taken over the hearing, that much of Mr Whitmore's questioning was unproductive. He denied that there was any bias and was not aware of any ground on which he might reasonably have been thought to be biased.In his submissions to us Mr Whitmore did not accept that those comments were 100% accurate, but nothing ever is on recollection of events. In substance, we accept the account of what is said in both Mr Whitmore's affidavit and in the additional comments which are made on it by the Chairman. The position really comes down to this, that the crux of Mr Whitmore's complaint is that the Chairman of the Tribunal, by saying in the course of the hearing that he was not interested in whether there was an Equal Opportunities Policy was a display of bias. On this point Mr Whitmore referred to some observations in the case of Simper (Peter) & Co Ltd v. Cooke [1984] ICR 6 page 11. Bias would occur when, on an objective test, it could be said that one party reasonably lacked confidence in the industrial tribunal. As was emphasised in that case:
"The question does not simply depend upon whether or not a party says that he lacks confidence, but on whether, substantively, there are good grounds for such confidence to be lacking."
It must depend on the facts of each case whether something that a member of the tribunal had said or done gives good grounds for a lack of confidence in the impartiality of the tribunal. It is necessary to look not only at words which are spoken, but the context in which they are spoken and at the overall position taken by the Tribunal in the conduct of the hearing and the decision reached.Mr Whitmore emphasised in his submissions that whether there was an Equal Opportunity Policy was a matter clearly relevant to the question of discrimination. It was something which the Tribunal was bound to take into account in making its decision. He referred to the statutory provisions in the 1975 Act (Section 47(10) and Section 32(3)). He submitted that it was clear from the Chairman's statement, which he never retracted, that he had continued to regard this evidence as irrelevant.We are unable to accept that submission. There are two main reasons why we do not accept it. The first is that, on Mr Whitmore's own affidavit, there had been a clear request by him, to the Tribunal, to make a ruling on the question of the relevance of the Equal Opportunity Policy. This is dealt with in paragraph 2(c) of the affidavit. The position was that when Mr Whitmore asked for a ruling on the admissibility and, therefore, the relevance of this evidence. The Tribunal did not refuse to hear that evidence or rule that it was irrelevant or inadmissible. The comment of the Tribunal was:"it is a question of how much time we will spend on it".In our view, that comment was justifiable and legitimate, since the question of an Equal Opportunity Policy was not a matter of contention. As pointed out in the first paragraph of the Full Reasons of the decision, it was an undisputed fact, that no one appreciated that there was a potential race discrimination situation. So no precautions were taken and the draft Equal Opportunities statement and the Code of Practice had not been referred to by those involved in the process at any time. What the Chairman was saying, on behalf of the full Tribunal, was, that it was not worth spending much time on it because it was not a matter of dispute. He was not saying that it was irrelevant or should be left out of account in the decision.The second reason why we are not persuaded by Mr Whitmore's submission it that it is clear from the passages quoted from the decision, namely, paragraph 1 and the reference to the Diocesan Guidelines in paragraph 28, that the Tribunal did have in mind, when it came to deliberate on the dispute and make its decision, the question of the Equal Opportunity Policy. It was one factor that they should take into account, and did take into account. It was not, for the reasons stated in paragraph 26 of the majority decision, a factor which carried much weight with them. What weight is to be attached to factors in a matter is very much for the Tribunal. It is not an error of law on the part of a tribunal to attach more weight to a factor than another tribunal would attach to it or than this Tribunal would attach to it.For those reasons we reject the main submission made by Mr Whitmore as disclosing any error of law on the part of the Tribunal.Mr Whitmore then made a number of detailed points, again, without, in our view, establishing an error of law on the part of the Tribunal. He criticised the way in which the Tribunal dealt with the similar fact point in the last paragraph of the decision. He submitted that there had been an error of law in failing to attempt to sort out what the facts were relating to the case of Mrs McHugh, the Scottish Teacher. The Tribunal had simply commented that Father Joyce had an explanation which appeared plausible but the Tribunal had failed to make up its mind whether to accept the reasons which had been put forward for the way which Mrs McHugh had been treated.A second further point was that the Tribunal had accepted, from the Respondents, an explanation for the selection of Mr Fegan which had not been pleaded in the Notice of Appearance. This was a reference to paragraph 24 of the Tribunal's decision which refers to the quality of being able to "fit in" and get on well with others in the relevant organisation. On this point Mr Whitmore referred to the cautionary words of the Court of Appeal in Baker v. Cornwall County Council [1990] ICR 452 at page 461, where Neill LJ pointed out:
"an excuse such as `we wanted someone who would fit in' is often a danger signal that choice was influenced not by the qualification of the successful candidate but by the sex or race of that candidate."
Again, it is a matter for the Tribunal to decide what weight they give to evidence on that sort of matter. What was said by Neill LJ in that case was how use of that kind of language should be danger signal for a tribunal in deciding whether or not to accept an explanation. It does not follow from the fact that the words "ability to fit in" have been used that the explanation offered should have been rejected by the Tribunal or that it should have made an inference of racial discrimination.Those are the further points which are made by Mr Whitmore. In summary his case is well set out in paragraph (6) of his skeleton argument when he said:
"The basic argument for the Appellant is that the evidence pointed overwhelmingly at racial grounds being the correct inference, and that the majority of the tribunal were perverse in not so finding, and/or affected by the bias of the Chairman on a material issue in the reasoning process, and/or affected by errors of law as to the way they approached the question of the relevance of the lack of implementation of an equal opportunity policy in line with the CRE's Code of Practice, and/or of their assessment of the `fitting in' argument, and/or of their treatment of the similar fact evidence."
We have considered all those points separately. We have also considered the cumulative effect of those points in the context of an overall submission that this decision was perverse, that is, a decision which no reasonable tribunal would have come to on the evidence. We are unable to see in this decision any perversity.As Mr Murray says, on behalf of the Respondents, another tribunal, on hearing the same evidence, might have come to a different conclusion. It might have drawn an inference that there was racial discrimination. It does not follow that, because another tribunal would have drawn the inference, there has been perversity. It is very difficult to show that a decision has been reached on the evidence which no reasonable tribunal would have come to.We have carefully considered all these submissions. In our view there is no error of law on the part of the Tribunal. We had in mind, at the end of the day, the general point which Mr Murray made in his brief, but trenchant, submissions on this point. He submitted that the Employment Appeal Tribunal should always be aware of the comments made by Waite J. in the judgment The Royal Society for the Protection of Birds v. Croucher [1984] ICR 604 at page 609, as to the duties of an appeal tribunal.

The Judge said at p.609F:

"We have to remind ourselves of our duty and our functions as an appellate tribunal. We have to remember that it is our duty loyally to follow findings of fact by an industrial tribunal which has enjoyed the advantages, which can never be ours, of having seen witnesses, sensed the atmosphere prevailing in a particular work-place, gauged the quality of the different personalities, weighed the impact of their effect each upon the other; and that cases must be very rare indeed where we take upon ourselves to reach the conclusion that a tribunal has arrived at a result not tenable by any reasonable tribunal properly directed in law."
The Judge went on the say that decisions of industrial tribunals do not have to be analysed word by word, line by line, in order to see whether they have made some possible mistake. It is important to bear this in mind. The approach is to look at the overall decision to see whether it is one that a reasonable tribunal could have reached and then to analyse, in the way that Mr Whitmore has done, the various stages that occurred in the conduct of the hearing and various stages in the reasoning of the tribunal to see whether there was some misdirection.We are unable to find any misdirection of law in this decision or in the conduct of the Chairman. For those reasons we will dismiss this appeal.