Eke v Customs & Excise [1994] UKEAT 459_91_1705

EAT

Eke v Customs & Excise

[1994] UKEAT 459_91_1705 · 1994-05-17

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Industrial Tribunal held at London (North) over a period of twelve days in January and April 1991.

For the Full Reasons notified to the parties on the 2nd July 1991 the Tribunal unanimously decided that complaints of race discrimination made by Mr Kyrian Eke against his employers, the Commissioners for Customs & Excise, should be dismissed.

Mr Eke was dissatisfied with the decision and appealed to this Tribunal by a Notice of Appeal dated 8th August 1991.

At the hearing before the Industrial Tribunal Mr Eke was represented by Mr Menon of Counsel. He does not have the benefit of representation by him at this appeal since we are informed that Mr Menon has since become a Chairman of Industrial Tribunals. Mr Menon has conducted the appeal "in person". He has done so with great thoroughness and energy. He has efficiently compiled into a bound volume all the documents which he wished to draw to the attention of the Tribunal. He has referred us to the relevant legal authorities and has made his points on the appeal with the support of a helpful summary contained in pages A, B and C of the bundle of documents.

Before we turn to the background of the appeal it is first important to mention briefly the extent of the jurisdiction of the Employment Appeal Tribunal. In cases of race discrimination, as with cases of unfair dismissal, the jurisdiction of this Tribunal is limited to questions of law arising out of proceedings before an industrial tribunal. The Employment Appeal Tribunal is not an industrial tribunal which rehears the evidence both oral and documentary. There is no appeal against findings of fact. There can only be an appeal if it is shown that there is an error of law in the decision. On this aspect of the Court's jurisdiction we refer to the two cases which Mr Eke cited. They are helpful in showing what is regarded as an error of law. The first case is British Telecommunications plc v. Sheridan

[1990] IRLR 27

. Mr Eke drew attention to headnote of the case which states:

"The EAT can interfere with the decision of an Industrial Tribunal if they are satisfied that the Tribunal have misdirected themselves as to applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. The EAT can also interfere if the decision is perverse, in the sense explained by May LJ in Neale v. Hereford & Worcester County Council. "

That is the other case which Mr Eke cited. It is only necessary to draw attention to a part of the headnote that said:- that the reasoning in that case by the Industrial Tribunal was not susceptible to the conclusion that there was in it any express misdirection nor could it be said of the decision "my goodness, that must be wrong". In reaching its decision the Tribunal had well in mind the matters relied upon in the EAT. The point is that, as Mr Eke reminded us, this Tribunal will interfere with the decision of an industrial tribunal if it was perverse in the sense that no reasonable tribunal, directing itself on the law and addressing itself to the relevant facts, would have come to the decision that it did. As has been put in a later case; this Tribunal will interfere with a decision which, on the relevant law and facts, is not a "permissible option" open to the Tribunal.

It is next necessary to say a few words about the relevant provisions in the Race Relations Act 1976 which govern cases of discrimination.

(a) provides:

"A person discriminates against another in any circumstances relevant to the purposes of any provision of this Act if - (a)on racial grounds he treats that other less favourably than he treats or would treat other persons;"

Section 4(2)(b) provides:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee . . . (b) in the way he affords him access to opportunities for promotion, transfer or training."

We mention that provision because Mr Eke's complaints in these proceedings concern two matters; first, there is a complaint that he was not selected for interview for promotion to Higher Executive Officer level with the Customs & Excise in May 1989, having worked for the Customs & Excise as an Executive Officer since June 1972. The second complaint is that in October 1989 a decision was taken by his senior Principal, Mr Whitfield, to place him on what is described as "limited efficiency proceedings". Mr Eke's complaint is that both decisions were taken on racial grounds. They both constituted matters under which he was treated less favourably than other employees were treated or would have been treated. The decision was on racial grounds. Mr Eke is of Nigerian origin.

In order to understand how the Tribunal arrived at the decision it is necessary to look at the complaints brought before them and the factual background to them. Mr Eke started to work for the Customs & Excise as an Executive Officer at Wood Grange in June 1972. The documents show that in 1973 he received very favourable reports on his work. He has referred us to a trial report on his conduct, diligence and suitability during a probationary, or trial period, starting June 1972. The report is dated 11th July 1973. In the report Mr Eke scored high marks for many of the individual qualities referred to in the form. It appears that the general assessment of Mr Eke's performance during the probationary period was highly favourable, summarised in the remarks of the Head of Office in these words:

"One of the best of our recent intake."

Unfortunately, Mr Eke's later employment with the Customs & Excise has not been as happy as it appeared to be during that probationary period. In the early 1980's he successfully brought race discrimination proceedings in the industrial tribunal against the Customs & Excise. He was moved in 1981 to the headquarters. It appears from his complaints in these proceedings that during his years there he has formed the impression that he is the subject of racial discrimination and of conspiracy. That is the basis on which he brought his complaints. The first hint of the complaints before this Tribunal appeared from events in 1988. In 1988 Mr Eke made an appeal against his non-selection for interview to HEO level. His appeal was heard by an independent panel on the 26th July 1988. The panel consisted of two personnel officers and a field officer, the personnel officers being a Mr Smith and a Ms Saner and the field officer being Mr Davis. Mr Eke attended, at the Queen Elizabeth II Conference Centre in Westminster, for an interview. We have the results of that interview set out on an assessment form. The form states, in the assessor's notes for feedback, that Mr Eke was:

"A likeable man who displayed a sense of loyalty and commitment but who expressed himself poorly and reasoned with difficulty. A profusion of views was interspersed with flashes of knowledge which lacked cohesion. A poor candidate."

The other remarks column marked "(NOT for feedback)" stated:

"The panel considered this candidate as unsuitable for promotion."

The form contains of another series of six areas in which marking is given, ranging from "very good" to "poor" under the headings of various interview criteria. There is then a column for marks from 1 to 10 ranging from "1 Never likely to qualify" to "10 Outstanding. An exceptional candidate." This document forms an important part of Mr Eke's case, since he argues that on the basis of the marking recorded in the overall assessment, he scored a total of 5 1 / 2 which would put him on the table of evaluation as between borderline and acceptable. One of his complaints about the decision of the Industrial Tribunal is that, when the Tribunal came to consider this document in paragraph 6 of its decision, it displayed a lack of understanding as to the true effect of the markings. In the decision the Tribunal, having commented on the composition of the independent panel, stated:

"Promotability would require a marking of 6 or higher. The panel marked the Applicant, on an average of their individual markings at somewhere between 1 (never likely to qualify) and 2 (poor) but rather nearer to 2."

On Mr Eke's argument this was a serious misunderstanding by the Tribunal of the assessment form. Mr Eke argued that the overall assessment recorded him as having 5 1 / 2 marks which put him well above the 1 or 2 referred to in paragraph 6 of the decision. Mr Eke explained that his interpretation of the marking was that there were a total of ten marks of which the Chairperson, Mr Smith, could allot 4 and the other two members 3 each. What the Tribunal did wrong was to look at the individual marks allotted by the members of the panel instead of looking at the total.

It may be the case that the Tribunal did not correctly understand the way in which the overall assessment was made on the marking. What cannot be left in any doubt, however, is the final view on Mr Eke's assessment. The notes on feedback and remarks quoted from the same form show clearly that the considered view of the panel was that Mr Eke was not suitable for promotion. No members of the panel were called by either side of the Industrial Tribunal to give evidence and, therefore, it may never be known precisely what was in the minds of the members when they allotted the individual marks. It is important to note at this stage that the decision of the independent panel in their assessment form is not complained of by Mr Eke as being made on racial grounds. That is not cited by him as a discriminatory act. Its relevance, Mr Eke argues, is that that report constitutes material that was available a year later when he was informed, by letter of the 12th May 1989, that he had not been selected for interview for promotion to Higher Executive Officer level. That was a decision of a "sift panel" who had never interviewed Mr Eke, but would have had before them the report of the independent panel. That is the decision, the non-selection for interview for promotion, alleged by Mr Eke to be a decision involving less favourable treatment on racial grounds.

The second matter of which he complains occurred later in October 1989 when he was placed on limited efficiency proceedings. That was a matter dealt with by his senior Principal, Mr Whitfield. Evidence was given to the Tribunal that the decision to take that course involved the transfer of Mr Eke, counselling, assistance and monitoring. Mr Eke regarded that as less favourable treatment meted out on racial grounds.

Those two complaints were raised in proceedings instituted by Mr Eke in Notices of Application presented to the Industrial Tribunal in August 1989 and in November 1989. It is made clear in both applications that he was complaining of racial discrimination and victimisation in the area of his employment on those two dates, the 12th May 1989 and the 18th October 1989. The Tribunal investigated those two complaints in detail. We have mentioned that 12 days were spent on the hearing. We have been informed by Mr Eke and it appears from the Notes of Evidence, that no less than 7 days were spent hearing evidence from Mr Eke. Seven witnesses were called by the Commissioners of Customs & Excise.

Before we turn to the reasons for the decision on the two acts of discrimination relied upon, it is important to quote paragraph 18 of the decision which contains the assessment of the Tribunal of the evidence given by Mr Eke and the evidence given by the Customs & Excise witnesses. The Tribunal state that they preferred the evidence of the Customs & Excise witnesses to that of Mr Eke for this reason:

"we prefer the evidence of the Respondent's witnesses for the reason that from our observation of them we are convinced that their evidence was truthful, accurate and reliable. Having observed the Applicant over a period of many days we found him to be excitable when challenged. Often evasive and always inclined to believe that he was right and everyone else wrong. He was inclined to dispute even the mildest allegations of fault or imperfection. He was further inclined to attribute any criticism to hostility and any such hostility to racial prejudice or victimisation. He was not a good witness and his evidence was not at all reliable, although we think he believed whatever he happened to say at the moment he said it. It seems to us that he is disappointed with his lack of progress over the years and simply cannot come to terms with it. There is nothing in his complaints before the Tribunal and they are dismissed."

The assessment of the witnesses by the Industrial Tribunal is of crucial importance on an appeal because all three Members of the Tribunal, and, we would emphasise, not just the Chairman, had seen all of the witnesses give evidence. They are in a position, which Members of this Tribunal can never be in, of forming views about the reliability of evidence given orally and tested by cross-examination.

We now turn to the reasons given for dismissing the two particular complaints. The Tribunal having reviewed the evidence about the independent panel in July 1988 and about the decision not to select Mr Eke for interview for promotion and to place him on limited efficiency proceedings, said this:

"In order to prove his case the onus has been on the Applicant [Mr Eke] to prove that the ostensible reasons for the non-selection and the `limited efficiency' action were not the true reasons. His case is that the true reasons were racial discrimination contrary to sections 1(1)(a) and 4(2)(b) and (c) of the Race Relations Act 1976 and/or victimisation contrary to section 2 of the Act."

The Tribunal reviewed the allegations about victimisation. They posed the questions in paragraph 12 which they had to ask themselves in relation to these allegations and then stated their conclusions in clear terms in paragraph 13:

"We are completely satisfied on the evidence as a whole that the panel's decision not to select the Applicant for a promotion interview not made on grounds of race or victimisation. None of the members of the panel was called to give evidence but there was no argument, let alone evidence, from the Applicant's side to impugn the panel's integrity. There is no reason whatsoever to believe that the panel was aware of any background of racial allegations or proceedings."

We pause to mention there that the panel referred to at that point in the decision must, in the context of that paragraph, be the sift panel which made the decision notified to Mr Eke on the 12th May 1989 not to select him for interview.

The Tribunal then dealt with the allegations against Mr Whitfield on the decision to place Mr Eke on limited efficiency proceedings. The Tribunal stated in paragraph 14:

"We are equally satisfied that Mr Whitfield did not take his action in relation to the Applicant on racial grounds or in order to victimise the Applicant. If he knew about the Applicant's tribunal proceedings in 1980, they had nothing to do with his decision. He did know of the Applicant's current complaint in relation to his 1988 report. Precisely because he was aware of it, he decided not to proceed with the limited efficiency proceedings until that complaint had been dealt with by the proper branch."

It is important, in the context of that finding about Mr Whitfield's action, to bear in mind what was involved in the limited efficiency proceedings. As stated in paragraph 9 of the decision the proceedings; it

"involved a transfer, counselling, assistance and monitoring"

The view was taken by Mr Whitfield that the time had come to assess Mr Eke and that, if progress was to be made, his position would have to be reassessed. The Tribunal stated the object was not to harass or disadvantage Mr Eke in any way.

Finally, the Tribunal dealt with the allegations of conspiracy. In paragraph 15 of the decision the Tribunal stated:

"we are satisfied on the evidence that there was no conspiracy between the panel and any other person or persons not to select the Applicant for interview for promotion. We are equally satisfied that there was no conspiracy between Mr Whitfield and any other person or persons to place the Applicant on limited efficiency proceedings."

Their finding, as emphasised in paragraph 16, was:

"quite simply that there is no evidence of the supposed conspiracy. Such a conspiracy is inherently unlikely and it would involve the co-operation of a large number of persons over a large number of years. But apart from that, the conspiracy would certainly have required the co-operation of some or all of the witnesses who were actually called before the Tribunal. Having heard and observed those witnesses, we are satisfied that none of them was motivated by considerations of race or victimisation."

The Tribunal, in those paragraphs, came to clear conclusions on the facts. These were helpfully summarised by Counsel for the Customs & Excise in a skeleton argument. It is important to see briefly what these findings of fact are in order to understand Mr Eke's attack on the decision. The Tribunal found as facts that the selection panel's decision not to select Mr Eke for promotion interview was not made on grounds of race or discrimination. Mr Whitfield did not take his action in relation to Mr Eke on racial grounds or to victimise him. There was no conspiracy of any kind between the panel or Mr Whitfield or any other persons. None of the witnesses, who gave evidence accepted by the Tribunal, was motivated by considerations of race or victimisation. Where the evidence was in conflict the Tribunal, for the reasons stated, preferred the evidence of the Respondent's witnesses to the evidence of Mr Eke. The Tribunal went out of their way to say that the Respondent's evidence, through its witnesses, was truthful and accurate. It concluded that the evidence of Mr Eke was less reliable.

Findings of fact in those clear terms make it difficult for Mr Eke to succeed on what is essentially an argument that the decision was perverse. He has to show, as he recognises from the two cases cited to us, that the decision of the Industrial Tribunal was not a permissible option, looking at the relevant statutory provisions and the evidence.

Mr Eke forcefully made a number of points. He made the general point that, since his move to headquarters, the personnel directorate had stood in his way and were responsible for his lack of progress after such a long period of service. He pointed out that he had received less favourable treatment than white candidates. He had been denied interviews for promotion and had been put on limited efficiency proceedings. That was prima facie discriminatory. The burden was on the Customs & Excise to adduce evidence to explain why he had been treated in this less favourable way. They had not produced satisfactory evidence. They had not, for example, called members of the panel that sat on the 26th July 1988 to give evidence of their assessment of his suitability for promotion. In those circumstances the Industrial Tribunal should have drawn the inference from the absence of a satisfactory explanation of his treatment that it was on racial grounds. Mr Eke made particular points on the evidence. He criticised the decision in detail. He attacked the general views expressed by the Tribunal about the performance of the Customs & Excise witnesses as compared to himself. He said that "they were just general remarks, they did not give any particulars of instances in which his evidence was less reliable than that of the Customs & Excise witnesses". He criticised the relative brevity of the decision, having regard to the length of the hearing. He made a submission that Mr Whitfield, in putting him on limited efficiency proceedings, had not been acting within his powers. He explained in some detail, by reference to the documents and the figures, that it was perverse to conclude that there was no racial element in the decision to place him on limited efficiency proceedings when regard was had to his performance and the figures he relied upon to show his turnover of cases as compared with those of other employees doing similar work.

We have kept all these points in mind in considering our decision. The conclusion we have reached is that none of the points establishes a point of law on which the decision of the Industrial Tribunal can be faulted. It appears to us that the Industrial Tribunal correctly directed itself to the relevant provisions of the Race Relations Act 1976 . The Tribunal asked the correct questions which have to be answered on the statutory provisions. They are set out in paragraph 12 of the decision. The Tribunal then looked at the facts and for the reasons given came to the conclusion that the two particular acts singled out by Mr Eke as constituting discriminatory treatment were not, in fact, less favourable treatment on racial grounds. Those are all decisions on questions of fact. No error of law was committed by the Tribunal in coming to those decisions. As for Mr Eke's overall submission, that the decision was perverse, we regard that as an impossible submission. He would have to say and does say that there was no evidence to support those findings. Having spent most of the day going through passages in the Notes of the Chairman, and reading other documents to which Mr Eke has drawn our attention, it is clear that there was evidence on which the Tribunal could come to this decision. In those circumstances it is impossible to say that the decision was a perverse one.

We have decided that this appeal must be dismissed. We appreciate that Mr Eke may continue to feel that he has not been fairly treated. We are sorry if he continues to feel this, because it does appear to us that the Industrial Tribunal examined his case with almost unparalleled thoroughness and carefully considered every aspect of it before coming to their conclusion. We can find no flaws in that decision. The appeal will be dismissed.