Campbell v Kent County Council [1994] UKEAT 606_93_0703

EAT
Campbell v Kent County Council
[1994] UKEAT 606_93_0703 · 1994-03-07
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London (South) over five days on the 19th and 20th November 1992 and the 4th, 5th and 30th March 1993. The Tribunal heard a complaint made by Mr Campbell against the Kent County Council. The complaint was of racial discrimination in the field of employment contrary to the Race Relations Act 1976 . There was also a complaint of victimisation.The complaints were made by Mr Campbell, a Management Consultant and Trainer in the field of Equal Opportunities. During the lengthy hearing, which Mr Campbell conducted "in person", as he also conducted this appeal, the Tribunal heard a number of witnesses called from the personnel sections and training sections of the Kent County Council.For the reasons notified to the parties on the 10th May 1993 the Tribunal unanimously decided that the application should be dismissed. The Tribunal gave extensive reasons, in 38 paragraphs.Mr Campbell was dissatisfied with that decision. He, therefore, decided to appeal to the Employment Appeal Tribunal. On the 10th June 1993 he issued a Notice of Appeal to which was attached a detailed commentary on the various paragraphs of the decision in support of his submission that the decision of the Industrial Tribunal was inconsistent with the evidence at the Tribunal.During the course of the appeal Mr Campbell has made clear what his complaints are of the Industrial Tribunal decision. He has done that both separate from his written submissions and by reference to the submissions which we have read. In order to understand the points which have been argued we must refer to the way in which this dispute arose.Mr Campbell presented a complaint to the Industrial Tribunal on the 19th May 1992 of racial discrimination. His complaint was that he had been subjected to racial discrimination during the period when he was engaged by the Council, from the 17th September 1991 until the 27th February 1992. He complained that, between those dates, the Council and its employees discriminated against him unlawfully. The particular actions complained of included the termination of a contract, which he had entered into with the Council; the withholding of monies due to him by reason of the contract and the Council's refusal to negotiate or provide information which was requested. There was added to that the complaint of victimisation.The Council disputed the complaints. Their basic case was that the contract for services under which Mr Campbell was engaged was terminated because of his conduct, not for reasons of racial grounds. The Council disputed the contract dates mentioned. According to the Council Mr Campbell was engaged under a contract of services entered into with an organisation called "Training Consent". Under that contract there would be a total of 18 day's training over a period of time. This contract is evidenced in several documents. The principal documents were the contractual offer made by "Training Consent" on the 27th September. The Council then say they terminated that contract by a letter sent by them on the 27th February 1992.The Council's case was that it was an implied term of the contract that Mr Campbell would arrive fully prepared for training days, with sufficient copies of documentation which he intended to be given out to them. It was an implied term of the contract that, if Mr Campbell required information from the Council for the purposes of the training then Mr Campbell would not request that it be furnished within unreasonably short periods of time. It was also an express term of the contract that Mr Campbell would meet with various people, including Ms Gay, one of their employees, to discuss and plan the intended training programme. It was an implied term that Mr Campbell would use reasonable skill and care in the performance of the contract.The Council set out their complaints. The complaints were that Mr Campbell had failed to arrive sufficiently prepared for the training days which he actually gave. He had initially failed to meet with Ms Gay and others to discuss and plan the intended training programme. The training by Mr Campbell was given in certain respects without the use of reasonable skill and care. It was in those circumstances that the Council claimed to be entitled to terminate the contract, or to accept the repudiation of it.There is reference to a meeting on the 20th December 1991. Mr Campbell attended a meeting at which, among other things, the content of the training programme was discussed. At the meeting the Council said that Mr Campbell agreed, in return for them declining to terminate the contract, that he would attend a meeting with Ms Gay and another employee, Ms Barnwell, on the 10th January to plan a training programme. As one of the days' training programmes he would provide the Council with an overview of the content of the course which he intended to give during the rest of the training programme. However, Mr Campbell later cancelled the meeting of the 10th January, saying that it was unnecessary. He failed later to attend any meeting to discuss the training programme. The Council set out the other circumstances in which they contended that Mr Campbell had repudiated the contract which the Council was entitled to accept, or alternatively, the Council were entitled to terminate the contract because of the substantial breach of its terms.In those circumstances the Kent County Council denied that there had been any discrimination on the grounds of race.That was the dispute that came before the Industrial Tribunal. The Tribunal had to apply the provisions of the Race Relations Act 1976 Section 1(1). That provides:
"A person discriminates against another in any circumstances relevant for 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 2(1) provides for the offence of discrimination:
"A person (`the discriminator') discriminates against another person (`the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
It is important to bear in mind the difficulties that a person alleging race discrimination has in proving his case. It was decided by the Court of Appeal in King v. Great Britain- China Centre [1991] IRLR 513 that in a racial discrimination case it is for the complainant to make out his case. There may be no direct evidence of discrimination. If, in fact there is not, that does not mean that the claim fails. The Tribunal is entitled to look to the employer to explain why the complainant has been treated as he has; for example; not selected for a job interview; or dismissed; or have his contract terminated. If the employer does not give a satisfactory explanation of his conduct, then the Tribunal is entitled to draw the inference that the discrimination was on racial grounds. This is not a question of reversing the burden of proof. It is a question of properly balancing all the factors which have to be placed in the scales in finding for or against a complaint of unlawful discrimination. We mention that case because the main complaint of Mr Campbell in his submissions is that this Tribunal made an error of law in failing to draw inferences of racial discrimination when, on his submission, there was no other explanation for the way in which the Kent County Council behaved.To see whether that is borne out we look first at the decision. The decision set out in great detail the history of the relationship between Mr Campbell and the Council. It referred, in particular, to the various contacts, to the meetings which took place and to the various problems encountered in the two parties' dealings with each other. In an important part of the decision the Industrial Tribunal dealt with the details of the meeting of the 20th December 1991. They came to this conclusion. They could not see in the meeting of 20th December anything other than a meeting by a dissatisfied customer seeking to find an explanation or mitigation for an unsuccessful first stage of an ongoing contract and attempting to negotiate a trial period. They found that there was no basis in Mr Campbell's claim that the conduct of that meeting and its outcome were part of a "hidden agenda" reflecting racial discrimination on the part of Ms Gay and another employee of the Council, Mr Cheatle.In answer to the point that, first of all, he had been selected as a black trainer to run the courses and that on the 20th December his contract was not terminated but he had been given the opportunity to run a further training course, Mr Campbell claimed that the Respondents, and in particular, Mr Cheatle and Ms Gay, were aware of the weakness of their position and the problems that would arise if his services were terminated on the 20th December. They therefore deliberately elected to set him up to have his contract terminated at a later stage.The Tribunal found that this contention was tortuous and inconsistent with the weight of the evidence. The Tribunal dealt with the further complaints. They came, in the concluding paragraphs of their decision, to this conclusion:
"38. . . . our conclusion is that the Respondents' dealings with the Applicant before and during the currency of the contractual relationship and the decision to terminate the contractual relationship were not caused by or influenced by racial considerations and it follows that the Applicant has not proved his case."
In his detailed comments attached to his Notice of Appeal the main point made by Mr Campbell is that the Kent County Council discriminated and the Industrial Tribunal failed to draw the proper inference of racial discrimination from their conduct. His case is that the Kent County Council did not co-operate or fulfil its part. The Council treated him badly and unjustly. It was an essential part of the contractual relationship that there should be a pre-course planning meeting. The meeting should have been organised by Ms Gay and her colleagues, but the meeting never happened. The result was that she and the Council did not fulfil that part of the agreement. As a result of that behaviour the Council have punished Mr Campbell, on racial grounds, for reasons which are really the fault of the Council. For a long time his fees were not paid. He submitted that there was no evidence to show that a white consultant engaged to provide these services would have been treated in this way. The Tribunal, he complained, had come to the wrong conclusion. If they had looked at the matter properly they would have inferred that there was, behind the actions of the Council, a "hidden agenda", that this programme should fail. That agenda was based on racial grounds. He said that these incidents would not have happened but for him being black. The behaviour of the Council, he said in his final summary, did not match the circumstances. If one examined all the evidence there was no other explanation for their behaviour than that it was motivated by racial grounds.That, in substance, is his case. In the document attached to the Notice of Appeal he repeats these criticisms. In paragraph 23 he says:
"The undertaking to pay the £666 was part of the contracts terms and we were entitled to have it paid since we had earned it, paying it would simply have brought us up to date and to suggest it was an act of good will is patronising. In terms of the hidden agenda if the chairman had `listened' to my evidence he would have heard me saying that selecting a black trainer was an essential part of the plan and that white trainers aren't treated this way and even the industrial tribunals across the country would recognise the trend to treat black trainers this way. I know some have brought similar cases. They are selected for their blackness and ejected when convenient, then the organisation can say they tried and equal opportunities goes on ice for a while longer, maintaining the status quo."
Mr Campbell criticised the way in which the Tribunal had dealt with the complaint. He said in paragraph 28:
"The Chairman `chooses' not to understand my approach to the second course and of course not accepting how the meeting of 20 December opened, I would suggest because only `white people' in his world are capable of telling the truth, his thought processes I frankly find insulting."
He said that the fact that one member of the Tribunal was Afro Carribean did not disguise the fact that a white tribunal chairman had manipulated what was apparently a unanimous decision.There were further complaints summarised under paragraph 34:
". . that an obvious feature of the case is that I was selected for my race. (I would have hoped it was for my proven ability) and that this is the point. I was selected for my blackness and every effort to make my project fail was exercised. This took the form of not cooperating with my requirements, then when this lack of cooperation had its impact they would blow me out, imply that I am incompetent, then claim that the project failed because of me and the status quo would remain."
Then, finally, in relation to his criticisms of the Tribunal, he submitted that the Chairman of the Tribunal had chosen to reject virtually all the evidence that Mr Campbell had given and had chosen to accept all the evidence given by the Kent County Council. That was an indication of the Chairman's own racist and biased attitudes to the case and that explained the reason why the Tribunal decided as it did.We have examined all those complaints in the written comments on the decision. We have considered the submissions which Mr Campbell has made this morning and this afternoon. We have come to the conclusion that there is nothing that this Appeal Tribunal can do to help Mr Campbell. The reason is this: the jurisdiction of the Tribunal is confined to hearing appeals which disclose errors of law by the Tribunal in the course of the proceedings and in their decision. We are unable to find an error of law. The reason for the Tribunal's decision is that they accepted the evidence of the Kent County Council, explaining the conduct of its employees. They did not draw the inference which Mr Campbell asked them to draw that the Council's actions had been motivated by racial grounds. It is for the Industrial Tribunal to decide which evidence its accepts and which inferences it makes or does not make. In declining to draw inferences of racial discrimination the Industrial Tribunal did not act perversely and were entitled to come to the decision they did. We are unable to find an error of law. For that reason this appeal should not proceed beyond the preliminary hearing to a full hearing.The appeal is dismissed.