Al Samarrae v Dan-Air Engineering Ltd [1994] UKEAT 583_92_2202

EAT
Al Samarrae v Dan-Air Engineering Ltd
[1994] UKEAT 583_92_2202 · 1994-02-22
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal sitting at London (South) in April and June 1992. The Tribunal unanimously decided that the employers of the Applicant, Mr Al-Samarrae, did not, in considering candidates for promotion, discriminate against him on the grounds of his race, nationality, colour or ethnic origin.The employers, who were the Respondents to the application and are the Respondents to the appeal, are Dan Air Engineering Limited. I shall refer to them as Dan Air.Mr Al-Samarrae was dissatisfied with the decision. He accordingly appealed to this Tribunal, by the Notice of Appeal dated the 24th August 1992.The case concerns allegations of racial discrimination arising from the refusal of Dan Air to promote Mr Al-Samarrae to a post which he was admittedly qualified to undertake.He was employed as a licensed aircraft engineer by Dan Air from the 4th January 1988. The allegations of race discrimination arose out of the treatment he received in relation to an application he made for promotion in February 1991. In order to understand the complaint, and the points which arise on the appeal it is necessary to refer to the background of the proceedings.Mr Al-Samarrae was born and educated in Iraq. He was an Iraqi by nationality and an Arab by ethnic origin. He trained as an aeronautical engineer in Scotland and was granted a maintenance engineer's licence. He worked as an aircraft engineer in Iraq. He took courses to increase his qualifications. In Iraq he worked as an aircraft maintenance engineer, a supervisor and a station engineer. He came to England and was employed as a line engineer by Dan Air. The matter which gave rise to the complaints was a staff vacancy notice posted by Dan Air on the 20th February 1991 inviting applications for the position of leading hands on the night shift. It was a supervisory post. The notice referred to vacancies for two leading hands on the rotating permanent night shift. The notice was signed by the line manager, Mr Johnson.On the 22nd February Mr Al-Samarrae wrote a letter applying for the job and he was interviewed on that evening by Mr Johnson. The disputes arose from the way in which the interview was conducted and the decision made to promote two other persons, a Mr Robinson and Miss Kirkland, to the vacant positions and not to promote Mr Al-Samarrae. There are further complaints about the manner in which Mr Al-Samarrae's grievance was dealt with. He invoked the grievance procedure in consequence of his non-appointment. An investigation was carried out by a Mr Williams, the maintenance manager. Mr Williams concluded from his investigation that there was no evidence of racial bias.The other matter of which complaint was made was an interview on the 22nd May 1991 with Mr Humphreys, who was the base manager at Gatwick. The complaint was that Mr Humphreys made racial remarks. The Tribunal did not find any indication that Mr Humphreys was racially biased or commented adversely on Mr Al-Samarrae's racial ethnic background.The final matter raised concerned the decision made when Mr Al-Samarrae applied for the post which was re-advertised. He was told, by letter dated 10th June, that his application would not be considered by reason of the matters raised by Mr Maskell, the Personnel and Industrial Relations Executive, in a letter of 30th May.The Tribunal considered those four complaints, made findings of fact, and came to the conclusion, in paragraphs 17 and 19 that Dan Air had not discriminated against Mr Al-Samarrae on racial grounds. The four complaints were brought to the Tribunal by two separate applications. The first application was presented on the 22nd May 1991. That was for race discrimination. Mr Al-Samarrae complained about the interview with Mr Johnson and the appointment of two other members of staff, both white and of British origin, and less qualified and less experienced than he was. He stated that he had lodged a grievance as a result of which there was an investigation and a decision to re-advertise the post allocated to Miss Kirkland.A second Originating Application was presented on the 16th August 1991. That complained of race discrimination and victimisation. Mr Al-Samarrae repeated, in more detail, the complaints in relation to his unsuccessful application for promotion and in relation to the grievance procedure. He added the complaint of the language of Mr Humphreys at the interview on the 22nd May, and of the reaction of Dan Air to his application for the re-advertised post. He was advised that his application would not be considered. He stated at the end of the second application that he:
"suffered unlawful and continuing race discrimination and victimisation contrary to the Race Relations Act . . . In particular (a) direct discrimination contrary to s.1(1)(a) (i)in that I was not appointed to either of the two vacancies on 28th February

(ii)in the rejection of my grievance

(iii)in the comments made by Mr Humphreys on 22nd May

(iv)in the refusal [of Dan Air] to consider my application of 7th June for the re-advertised posts

(v)in refusing to allow me to apply for any similar position for one year"

He complained of victimisation, contrary to Section 2 of the Race Relations Act 1976 as a result of his alleging race discrimination in relation to the initial promotions.There were, before the Tribunal, at the start of the three day hearing, issues on race discrimination concerning his unsuccessful application for appointment; the rejection of his grievance; the alleged racialist remarks of Mr Humphreys and the refusal of Dan Air to consider his application for the re-advertised post and the refusal to allow him to apply for any similar position for one year. There was also clearly, the complaint of victimisation.The Tribunal gave Full Reasons for its decision on the 23rd July 1992 on each of the four main points.First, in relation to the complaint that he was not appointed to the post for which he applied. The Tribunal dealt with the matter in paragraphs 3 and 4 of the decision. They referred to the interview of 22nd February and to evidence given by Mr Johnson and Mr Al-Samarrae. The Tribunal relied, as it was entitled to, on a written memorandum which Mr Johnson sent to the Senior Personnel Manager, Mr Maskell, on the 8th March 1991. It was stated in the Memorandum, quoted in the decision, that Mr Al-Samarrae was not sure how he would cope with the shift and travelling time. As to his performance in the interview the comment was that he answered the questions satisfactorily and was polite and friendly, but his attitude was not nearly as positive and forceful as the other two applicants. He appeared, in fact, almost timid. It was noted that his sickness record was not good.The Memorandum concluded:
"I must say in conclusion that it matters not at all to me what a persons' nationality may be. We do have a multi-racial work force on Gatwick Line."
The Tribunal found that Mr Johnson did consider and refer to Mr Al-Samarrae's sickness record during the interview and in his subsequent consideration of all three candidates. The Tribunal found that the outcome of the two meetings was that Mr Johnson decided to promote both Mr Robinson and Miss Kirkland to the vacant positions and not to promote Mr Al-Samarrae.Mr Al-Samarrae criticised the appointment, particularly of Miss Kirkland. The Tribunal found that he rightly considered that it was a matter of grave suspicion than an engineer who did not have the qualifications specified in the advertisement should have been appointed, when he, Mr Al-Samarrae, was holding full qualifications and was not appointed.The Tribunal proceeded to the second area of complaint, in relation to the grievance procedure. As a result of his non-appointment Mr Al-Samarrae told his union representative that he wished to use the grievance procedure to object to what had happened. He wrote to his representative setting out details of the case he wished to present. One of the points that he made in his letter of complaint was that the two successful applicants had been qualified as licensed engineers for less than a year in contrast to his 15 years.The Tribunal commented that the letter covered a page and a half, but did not suggest that he considered that Dan Air, or its management, had discriminated against him on the ground of race.The matter of the grievance was investigated under the appropriate procedure. It was carried out by Mr Williams, the Maintenance Manager, accompanied by Mr Maskell, the Senior Personnel and Industrial Relation Executive. Mr Al-Samarrae was interviewed, Mr Johnson was interviewed. Mr Williams completed his investigation. His conclusion was that there was no evidence of racial bias in the decision made by Mr Johnson not to appoint Mr Al-Samarrae and Mr Williams accepted that Miss Kirkland had been appointed because, in Mr Johnson's opinion, she displayed better supervisory qualities.Mr Williams went on to recommend, however, that the post be re-advertised and that all the applicants, including Mr Al-Samarrae, if he decided to reapply, should be re-interviewed by an independent assessor and that all future interviews for promotion and employment should be conducted with at least two members of management present, preferably one personnel manager.These conclusions were summarised by Mr Williams in a letter to Mr Al-Samarrae on the 10th May. Mr Williams accepted that there were some unsatisfactory aspects of the selection procedure. In particular, Miss Kirkland had not met the technical qualifications specified in the advertisement. It was about that time of the interview of Mr Al-Samarrae by Mr Williams and Mr Maskell that Mr Al-Samarrae made the first specific allegation of racial discrimination in connection with his non-appointment.Mr Williams' recommendations were followed on the 16th May 1991. Miss Kirkland, Mr Robinson and Mr Al-Samarrae were re-interviewed for the vacancies. The interview was carried out by Mr Derek Lynn, the Base Manager at Lasham, another Dan Air depot, Mr Lynn was accompanied by Mr Graham Humphries, Personnel Manager from Manchester. A report was made by Mr Lynn and his report is quoted in the decision. It says of Mr Al-Samarrae:
". . . he [Mr Al-Samarrae] might have been found an ideal candidate for the position in terms of experience, licence and approval cover but his long established sickness record which in June 1990 resulted in him losing his right of self certification gives rise to precluding him from a position of night shift responsibilities."
He had missed 22 night shift attendances per annum through reasons of sickness.The report made by Mr Lynn concluded that Mr Robinson and Miss Kirkland were found to be excellent promotional material. Mr Al-Samarrae's file revealed that his attendance reliability needed drastic improvement before any further progress could be considered in his career.The decision of the Tribunal dealt, in paragraph 12 with the third matter, the comments which Mr Humphreys was alleged to have made to Mr Al-Samarrae at the interview on the 22nd May. On 22nd May Mr Humphreys asked Mr Al-Samarrae to see him. Mr Al-Samarrae went to his office. Mr Al-Samarrae told him about his qualifications and his experience and his work position with Dan Air.
"During the interview, Mr Humphreys made some remarks directed to the fact, as he saw it, that there were different ways of going on in the Middle East to that which obtained in England, in particular in the management of a workforce. Mr Al-Samarrae appears to have taken those remarks as racially in nature and derogatory of people from the Middle East, but upon the impression of the remarks which Mr Al-Samarrae gave in his evidence in chief we find that they did not have that character, and that a reasonable person of whatever ethnic origin would not have so taken them. Certainly we find that they do not, in any way, indicate that Mr Alec Humphreys was racially biased or was commenting adversely upon Mr Al-Samarrae's racial or ethnic background."
The Tribunal dealt with the further matter of the re-advertisement, the further application made by Mr Al-Samarrae and the manner in which that was handled by Dan Air. The outcome of the interviews was that the two posts were re-advertised. Mr Al-Samarrae was sent a letter about this and telling him that he was considered unsuitable for the position due to his poor sickness record.
"The letter added that he would not be considered for any similar position until he had attained a sustained period of satisfactory attendance lasting for one year."
The Tribunal considered evidence given by the Dan Air managers about the position and stated that they accepted that the full details of Mr Al-Samarrae's sickness record were not available to Mr Maskell when he wrote and were only investigated and analysed by Mr Ludlow shortly before the hearing of the Industrial Tribunal. The Tribunal commented:
"Judged by the standards required of an employee working on the night shift for the Respondents [Dan Air] Mr Al-Samarrae's sickness record prior to November 1990 was highly unsatisfactory, a factor mitigated considerably by the fact that in July and October Mr Al-Samarrae had absences recorded as sickness when he was suffering from industrial injury. We do not consider, therefore, that the Respondents [Dan Air] deliberately used Mr Al-Samarrae's sickness record as a cloak for racial discrimination, but accept that, had they been better organised in recording and analysing sickness absences, they would not have written to Mr Al-Samarrae in the manner in which they did, and his prospect of obtaining promotion would not as at 30 in May 1991 would have appeared to depend upon a considerable change in his sickness absence record.
15Notwithstanding the contents of Mr Maskell's letter of 30 May 1991, Mr Al-Samarrae applied for the re-advertised post, but he was told by letter dated 10 June 1991 that his application would not be considered by reason of the matters raised in Mr Maskell's aforesaid letter of 30 May. In the event, Miss Kirkland was appointed to the vacant leading-hand position, albeit that the appointment was probationary for a period of six months and conditional upon her obtaining her missing qualification in airframe maintenance during that period."It is necessary to state those facts in detail because Mr O'Brien, on behalf of Mr Al-Samarrae, referred in considerable detail, in the course of his submissions and in his skeleton argument, to many factual aspects of the case. Before we go to deal with the details of his submissions it is important to identify the main thrust of his appeal.Mr Al-Samarrae can only suceed on appeal if an error of law is disclosed in this decision. Mr O'Brien's submission is that there is an error of law. It takes two forms. In our view the two points are so closely connected that it comes, in substance, to one point. Mr O'Brien's criticism is of the way in which the Tribunal set about making its findings of fact, analysing the evidence and coming to the conclusions in paragraph 17 and 19 that there was no racial discrimination. It was submitted that what the Tribunal had done wrong was to roll up or lump together all the incidents alleged to be actionable instances of race discrimination, and one instance of victimisation, without drawing distinctions between the separate incidents, which gave rise to separate courses of action. The Tribunal failed to deal with each incident separately stating findings of fact and reasoning itself to a conclusion. Instead, the Tribunal dealt with all the factual aspects of the incidents chronologically, and then expressed its conclusions in a general manner, without any reference to the claim for victimisation as a separate matter and without expressing reasoning as to why it reached its conclusions in respect of each incident.Paragraph 19, bears the main burden of the attack. It reads,
"Having weighed the entirety of the evidence before us, and considered it in greater detail than would appear from this brief summary of the events, we find that the evidence before us is not such as to shown that the Respondents discriminated on racial grounds against Mr Al-Samarrae in their decision not to appoint him to the position of leading-hand, and his complaint to this Tribunal therefore fails."
Mr O'Brien submits that that is not the correct legal approach in a race discrimination case. He refers to some comments made by Mr Justice Wood in this Tribunal in the case of British Gas plc v. Sharma [1991] ICR 19 and to comments in the decision of the House of Lords in Barclays Bank plc v. Kupur [1991] ICR 208 .In the House of Lords case, Kapur , the issues concerned time limits under the Race Relations Act 1976 . Mr O'Brien arguing by analogy that it is important to deal with the different claims of race discrimination separately. In that case it was important to draw a distinction, for time limit purposes, between a one-off decision and a separate complaint about a continuing state of affairs alleged to amount to race discrimination. The proposition that Mr O'Brien seeks to draw is that, in a race discrimination case, each incident complained of should be given separate consideration when the Tribunal is adjudicating on matters of liability. Each separate incident can give rise to separate liability. It is not suitable in such cases to look at the situation as a whole.He then relied on the case of British Gas plc v. Sharma [1991] ICR 19 and to the well known Court of Appeal case of Meek v. City of Birmingham DC [1987] IRLR 250 , 251 to support his second main ground that there was a failure of the Tribunal to set out in sufficient detail the reasoning which led to the final overall conclusion that there was no racial discrimination. Starting with Sharma's case he cited Mr Justice Wood's observation that cases involving discrimination are likely to fall into the category of case which deserve more detailed treatment. It is important to read those remarks in context. They were made by Mr Justice Wood, having cited a passage from Meek in relation to a hopeless proposition, that in race relations cases it was not appropriate for an industrial tribunal to be asked to decide where the truth lay. That was, not surprisingly, rejected. After citing Lord Justice Bingham from Meek's case it was observed, that such cases are likely to require more detailed treatment in relation to findings of fact, in particular, where there were conflicts of evidence. It is important to observe that Mr Justice Wood repeated in that case what has been said in many previous cases, that it is not a function of the Employment Appeal Tribunal to subject decisions of the Industrial Tribunal's to close tooth-comb analysis of phraseology. What has to be looked at is the substance and sense of the decision. In relation to Meek's case Mr O'Brien said that, although he accepted that an industrial tribunal did not have to produce a polished work of legal craftmanship, it was essential to do what the Tribunal had not done in this case; that was, not only to give an outline of the story and a summary of the factual conclusions, but also a statement of the reasons which led the Tribunal to the conclusion that it did on the basic facts. The general proposition is that, without a statement of reasons, the parties do not know why they have won or lost. They are faced with obstacles in seeking to challenge the decision in a higher court. Without a statement of reasons it is difficult to see whether there has been any error of law.Those are the two ways in which Mr O'Brien put what is, in substance, the same point, ie the legal approach adopted by this Industrial Tribunal was erroneous in law because, by lumping together all the incidents complained of and dealing with them in a compendious way, the Tribunal failed to give any, or any satisfactory reasons, for coming to the conclusions that it did on each incident separately. In particular, he singled out the complaint of victimisation as not specifically mentioned at all.The general submissions were followed by detailed submissions, referring not only to the decision of the Tribunal but also to substantial passages in the Chairman's Notes of Evidence, which run to 137 pages. In our view, many of these references were unhelpful. They were unnecessary for the purposes of making the points on the appeal. Mr O'Brien accepted that, although perversity was stated to be a ground in the Notice of Appeal, it was not pursued by him. This was not a case, therefore, in which it was appropriate to go in detail to the Notes of Evidence to see whether conclusions of fact had been arrived at by the Tribunal without any evidence for them or in flat contradiction to undisputed evidence. The detailed factual points are stated in the Skeleton Argument. These points were made:
"1.The tribunal failed to distinguish between specific allegations of discrimination."
It had therefore failed to distinguish between the issues on the individual incidents and between issues of liability and remedy.He submitted that the Tribunal was obliged to consider each item of alleged discrimination separately at the stage of dealing with the lawfulness of Dan Air's conduct. A specific complaint was made, in relation to victimisation, not considered at all in the decision.The Tribunal had not made necessary findings of fact in relation to each incident. It had therefore failed to comply with its obligation as recognised in Meek's case and Sharma's case.The second main area of criticisms was in relation to the failure of Mr Al-Samarrae to be appointed. It was said that the decision was made by the Tribunal without any findings in relation to the decision making process of Mr Johnson. The Tribunal accepted that Mr Al-Samarrae was right to regard his non-appointment with grave suspicion, but did not set out in the decision why those feelings were, in fact, not justified. Mr O'Brien made detailed points on Mr Johnson's evidence relating to departures from good equal opportunities practice and to the respective qualifications of Mr Al-Samarrae as opposed to the other applicants for the same post.The main criticism under this head was that the Tribunal ought to have analyse of the process by which the decision was made not to appoint Mr Al-Samarrae.Moving on to the grievance procedure, the complaint was made that there was no analysis of whether the conclusion of Mr Williams that there was no evidence of racial bias was a correct assessment; or whether the process of Mr Williams' enquiry was satisfactory; or whether it, in fact, operated as a further act of discrimination against Mr Al-Samarrae.Going to the incident concerning Mr Humphreys' remarks in the interview on the 22nd May, the complaint is that the Tribunal had not made any findings as to what was said. So this Tribunal is unable to form any view of the matter. The reference to bias in the concluding sentence of paragraph 12 disclosed an error on the part of the Tribunal in considering that motive was a determinative feature of the case. There was an error in looking subjectively at what should be judged by objective criteria.Finally, on the victimisation complaint, the refusal to consider the application and the imposition of a one year ban on promotion, it was argued that this was specifically identified as a separate allegation. It was not adequately dealt with by the Tribunal in its Reasons.In cases of this kind it is important to concentrate on the main points. This Tribunal is not here to correct or criticise points of detail which are in the end, unimportant in the decision making process of the Tribunal.In our judgment, the decision cannot be justifiably criticised as disclosing an error of law. It may be open to some criticisms of the kind Mr O'Brien made on the grounds that the decision could have been written differently; could have been written more fully; could have been set out in more detail. It does not follow from the fact that it could have been done in those ways, that failure to do so is erroneous in law. We are persuaded by the submissions made by Ms Gill, on behalf of Dan Air, that this appeal should be dismissed, not, as Mr O'Brien contended, remitted for a hearing before a different industrial tribunal.Ms Gill made clear and concise submissions, which persuade us to dispose of the appeal in her client's favour. She submitted that the Tribunal had distinguished between the specific allegations of discrimination. They had done so in the paragraphs which set out the facts from paragraph 3 to paragraph 16. They set out the facts relating to failure to appoint Mr Al-Samarrae on the 28th February and had concluded in paragraph 19 that no discrimination on racial grounds had been shown.They dealt with the question of the grievance. Ms Gill pointed out that the complaint of rejection of the grievance was in fact a mis-statement position. The grievance had succeeded to the extent that a decision was made to re-advertise the post.As to the third point on the comments alleged to have been made by Mr Humphreys on the 22nd May 1991, we agree with Ms Gill that the Tribunal did find facts and come to a conclusion. The Tribunal found as a fact that Mr Humphreys had made remarks directed to the fact that there were different ways of going on in the Middle East to that which obtained in England, in particular in the management of a work force. The Tribunal concluded that those remarks were not made on the grounds of race. As for Mr O'Brien's criticism that there was reference to bias and, therefore, an indication that the Tribunal was misdirecting itself to subjective, instead of objective criteria, there is no substance in this. The Tribunal, in the sentence before the reference to bias, had clearly correctly directed itself to the objective test by stating their conclusion that a reasonable person of whatever ethnic origin would not have taken these remarks as having a racial or derogatory character. Having applied that test we agree with Ms Gill that there is no error of law in then referring to subjective matters, such as bias or motive as well. They have some probative force, though they would not by themselves amount to a correct test whether remarks were racial in character.She submitted that the refusal to consider the application of the 7th June was adequately dealt with in paragraph 14 of the decision. An express finding was made that Dan Air had not deliberately used Mr Al-Samarrae's sickness record as a cloak for racial discrimination.It appears that all of the complaints that were made in the two Originating Applications were dealt with, both as to the facts and as to the findings. A clear overall conclusion was stated. Each of the complaints was rejected.That leaves the question of victimisation. Ms Gill recognised that the complaint of victimisation was not mentioned under that description. But she is right in saying that the acts relied on as constituting victimisation in the second Originating Application are the very same acts relied on to constitute the complaint of racial discrimination under Section 1 of the Act. It was, therefore, appropriate for the Industrial Tribunal to consider all the complaints together and to conclude that there was no victimisation. In our view, it is clear that the statement in paragraph 19, read in the context of the earlier paragraphs which recite the evidence and state the findings of fact, is a clear conclusion both on the claim for victimisation and on the other claims.Ms Gill made more detailed comments under each of the alleged complaints. It is not necessary to go into those. We agree with her, as already stated, that there was no error of law on the part of the Tribunal in failing to analyse in more detail than it did the processes involved in reaching decisions under each of these complaints. There was no obligation for the Tribunal to analyse in more detail than did the process leading to Mr Johnson's decision not to appoint Mr Al-Samarrae to the post. There was no obligation to go into further analysis of Mr Johnson's report and the grievance procedure. The conclusions of the Tribunal in relation to the incident with Mr Humphreys was, for the reasons said, clear in its findings of fact and contained a proper direction as to the objective test, re-enforced by reference to more subjective considerations of bias.In those circumstances we accept the submissions made on behalf of Dan Air. We reject the submissions made on behalf of Mr Al-Samarrae. We shall dismiss the appeal.