Mian v Department Of Health [1994] UKEAT 8_93_0311

EAT
Mian v Department Of Health
[1994] UKEAT 8_93_0311 · 1994-11-03
MR JUSTICE MUMMERY (PRESIDENT) : This is an Appeal from the Industrial Tribunal held at London South between 14 and 18 September 1992 and on 5 and 7 October 1992. For full reasons notified to the parties on 19 November 1992, the Tribunal unanimously decided that the Department of Health had not discriminated against the applicant on grounds of race.Mr Mian appealed against the decision by a Notice of Appeal dated 24 December 1992. The Appeal came before this Tribunal on a preliminary hearing on 17 March 1994. At that hearing it was directed that the Appeal should be allowed to proceed to the full hearing which has taken place today. Orders were made for the exchange of Skeleton Arguments; that was complied with the effect of compliance has been to provide the Tribunal with excellent, clear arguments on each side. The effect has been to focus the arguments on the essential points and to enable the Tribunal to deal with the matter more efficiently than would have been possible without those written submissions.Mr Mian has presented his own case. Mr Wilson has represented the Department. In order to understand the points on the Appeal, it is necessary to look first at the issues which the Tribunal was asked to decide. Mr Mian presented an application to the Industrial Tribunal on 21 October 1991, claiming that he had been discriminated against contrary to the Race Relations Act [1976] . The essence of his complaint was that he had applied for a grade 7 position within the National Health Service Management Executive Directorate. At the time of his application, he was employed in the Medical Devices Directorate. He had been employed by the Department since 15 April 1985. He is of Pakistani origin.On 30 May 1991, he put in the application for the grade 7 position. There were about 35 positions to be filled. He was successful in obtaining a board interview. He was interviewed on 23 July 1991 by a selection board, but was rejected on 9 August 1991. He referred then in his complaint to his experience and qualifications and the fact that he was told (and this was not disputed) that his interview went very well. He believed that he had met all the criteria and that the reason that he was rejected was on the grounds of his ethnic origin.The claim was contested by the Department, who denied that Mr Mian's ethnic origin played any part in the decision not to promote him. Their case was that his educational qualifications did not give him an automatic entitlement to be promoted to grade 7. Practical experience was important when considering suitability for a grade 7 post and the board of selection considered that Mr Mian showed a lot of potential to get to grade 7 quickly, but, because of his full-time study and project work, he had little experience of working in the Department and was not yet ready for promotion to the higher grade. The board was of the opinion that he needed experience in a good mainstream administrative post and made a recommendation to that effect.The task of the Tribunal at the hearing was first to listen to all the evidence. A number of witnesses were called to give evidence on behalf of the Department. Their evidence in chief was set out in witness statements. Evidence was given by Mr Mian. A large number of documents were put before the Tribunal in an agreed bundle. The Tribunal then had to make findings of primary fact, appraise the factual situation and apply the law to reach a result on Mr Mian's complaint.We deal first with the relevant law. It always has to be borne in mind that this Tribunal can only hear appeals on questions of law. There is no serious dispute between Mr Mian and the Department about the relevant statutory provisions and the authorities. Under Section 1 of the 1976 Act:"(1) 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..".And racial grounds are defined in Section 3 as meaning:
"... any of the following grounds, colour, race, nationality or ethnic or national origins..."
Only two authorities have been cited to the Court by Mr Mian on this Appeal and Mr Wilson has not disputed the legal principles stated in them.The first is the decision of the Court of Appeal in North West Thames R.H.A. v. Noone [1988] ICR 813 which summarise the approach to be taken by an Industrial Tribunal on a complaint of racial discrimination.First, and most important, are the statements by Lord Justice Balcombe on page 831 from D onwards, where it is stated that there is an evidential difficulty for a person who alleges and has to prove race discrimination. The difficulty lies in the absence, in many cases, of direct evidence of discrimination. The legal position, as stated by Lord Justice Balcombe on the basis of earlier authorities decided by Mr Justice Browne-Wilkinson as President of this Tribunal, is that discrimination on racial grounds:
"... normally consists of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called upon to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from primary facts will mean the complaint succeeds..."
It is made clear in the cases that the drawing of an inference is a course which the Tribunal may adopt if there was differential treatment of people of different races, unless the Respondent can satisfy the Tribunal that there is an innocent explanation. Inferences from facts are not made automatically or mechanically. It is a question of looking at all the facts and asking what is the appropriate conclusion to draw from them.The other passage in the case of Noone drawn to our attention by Mr Wilson, is in the judgment of Lord Justice May page 824 between C and F. He said this:
"... these racial discrimination claims are never easy, and so much depends on the inferences which the industrial tribunal think it right to draw from the evidence and material put before it. If there is no evidence or material from which an industrial tribunal can draw the inference of racial discrimination then, of course, they should not do so. On the other hand, one must not forget that it is the industrial tribunal which sees and hears the persons actually involved. Perhaps more than in most cases the assessment by the industrial tribunal of the thinking of the person or persons against whom the allegation of racial discrimination is made is most important. As is well known, appeals lie from an industrial tribunal to the appeal tribunal only on a point of law, and it is only when the latter is satisfied that there was no material upon which the former could reach the conclusion that it did that the appeal tribunal should entertain the appeal..."
It is important to bear in mind those remarks. Witness statements were provided and evidence given by the board chairman and board members, as well as by personnel officers and the line manager from the department.The other case which Mr Mian cited, deals with a more specific topic and that is the relevance statistical evidence in a case of race discrimination. That is West Midlands Passenger Transport Executive v. Singh [1988] IRLR, 186. In his judgment,

Lord Justice Balcombe at page 188, paragraph 15 said this:

"... (3) Direct discrimination involves that an individual is not treated on his merits but receives unfavourable treatment because he is a member of a group. Statistical evidence may establish a discernible pattern in the treatment of a particular group: if that pattern demonstrates a regular failure of members of the group to obtain promotion to particular jobs and to under-representation in such jobs, it may give rise to an inference of discrimination against the group..."
The reason why that passage was cited is that one of the four points made on Mr Mian's appeal relates to the Tribunal's treatment of statistical evidence.We now come to the reasons for the Decision. We view them in the light of the rival submissions. The reasons set out the details of Mr Mian's employment and of his application for promotion to grade 7. They refer in detail to his CV and to, in particular, an MBA course which he had completed between 1988 and 1990 at the Manchester Business School. We have the CV before us. It was produced at a time when Mr Mian was 31 years old. It sets out details of his educational and other qualifications, his employment record, consultancy assignments and other relevant experience as well as his personal interests. It is not necessary to repeat all the details contained in the Tribunal Decision. We go to the way in which the Tribunal dealt with the arguments of Mr Mian. The points which he has made on this appeal follow very closely the points commented on by the Tribunal. It is important to set the points in context. For that purpose I read paragraph 9 of the Decision:
"... 9. We have commented in detail on the Applicant's submissions because we recognise his sincerity and his disappointment with the progress of his career so far. The Respondent must take some share of the blame for the position in which he finds himself: we feel that the MBA course may not have been the best road to accelerated promotion and we are sure that the Respondent should have made better provision for him after the course. However, the Applicant's case in the end is against the promotion board. We are satisfied that there is no evidence whatsoever that that the Board's Chairman and Members discriminated against the Applicant in any way. We have heard their evidence and observed their demeanour and judge them to be persons of integrity on whom we can rely. We are satisfied that considerations of race did not operate on the conscious level in any of their decisions and we find no evidence to suggest that they operated at an unconscious level. We conclude that the Applicant's case fails and must be dismissed. We trust that the Applicant and the Respondent will accept the sincerity of the "other side" and work out a solution for the future without rancour..."
We were pleased to hear that Mr Mian has now obtained promotion, but we make it clear that that fact does not affect the validity of arguments he may have on this Appeal. He told us that he wished to pursue this Appeal as a matter of principle. If he has valid arguments, they remain valid, notwithstanding his improved work status in the Department. What are his arguments? They are set out lucidly in his Skeleton Argument under four headings. We will follow those headings in dealing with his Appeal. I should make it clear that in relation to each argument, statistical evidence, relevant experience, weighting interview and specialism, the underlying submission of Mr Mian is that the Industrial Tribunal reached a decision which was perverse. This is so whether you are looking at each point individually or all four points cumulatively. His case quite simply is that no reasonable tribunal, properly directing itself to the law and fully appreciating the facts, would have come to the decision that there was no racial discrimination. In other words, no reasonable tribunal would have accepted the Department's evidence as to the reasons by Mr Mian was not promoted and, in the absence of a satisfactory or innocent explanation from the Department, the only inference which a reasonable tribunal could have made was that he had been refused promotion because of his ethnic origin.We think that Mr Mian appreciates that, although perversity is a point of law, it is a difficult ground on which to succeed in an appeal. Mr Mian has presented his case extremely forcibly and, if we may say, was admirable conciseness, having regard to the volume of evidence and the length of hearing before the Industrial Tribunal. The individual points were these: first, on the statistical evidence, he showed us the statistical evidence which was before the Industrial Tribunal. It was presented in a form of a graph and is headed "NHSME (that is the National Health Service Management Executive, which was created in 1989) Ethnic Composition". What it shows is that there is no ethnic minority content in grade 7 and above. There is another chart produced relating to Department of Health Headquarters Ethnic Composition that is not as relevant to his claim. That evidence was put before the Tribunal. The Tribunal's comment on it was that they were unable to conclude from the statistics that they showed evidence of present, as opposed to past, discrimination and the statistical evidence did not cast doubt on the Department's Equal Opportunities policy. The reason for that conclusion is that the Tribunal said that Mr Mian was not able to demonstrate from the graph that there was what was described as ethnic dilution at successive grades. Mr Mian's submission had been that, bearing in mind that each grade feeds the next grade up, the ratios should be approximately equal. He made a comparison with the position in the Department of Health Graph. The comment of the Tribunal was this:
"... There must obviously be a huge time lag in each successive grade before the percentages even out. The percentages of promotions may be a slightly more reliable guide but, as the Respondent points out, they are based on small sample sizes and a small increase in absolute numbers will result in a large percentage increase..."
They said that Mr Mian acknowledged that in a different context. Mr Mian's complaint about that part of the decision is this: first, there was no mention at the hearing either by the Tribunal or, it seems, by anybody else, about the time lag point referred to in the Decision. As it was not mentioned at the hearing, Mr Mian had no chance to make submissions about it to the Tribunal before they reached a decision. He pointed out that the statistical evidence had not been fully understood by the Tribunal. He submitted that the suggestion of the Tribunal that the statistical evidence could be dismissed due to a time lag was unfounded and not based on any factual information whatsoever. The statistical information which he provided was correct at the time when the discrimination occurred. Using the principles in the West Midlands Passenger Transport case, the Tribunal should have made an inference, from the absence of ethnic minorities in the higher grade; that there was racial discrimination. The reference to past discrimination and the time lag, failed to appreciate the short time in which the management executive had been in existence.The Department, on this point, submit that no valid criticism can be made of the statistics. The Department accepts that the Tribunal may drawn inference of discrimination from relevant statistical evidence, which shows that members of a certain ethnic group are less successful in promotion than white counterparts, but there was no statistical evidence before this Tribunal to show there was a real difference in promotion success in the Department between white employees and ethnic minority employees.In relation to the time lag criticism, the Department made two points: first, it was not an error of law on the part of the Tribunal to make a comment in its decision which had not been previously put to the parties at the hearing, or raised by the parties themselves. Mr Wilson submitted that there was no principle of law requiring a tribunal, in assessing evidence, to restrict itself to reaching conclusions based only upon submissions made about that evidence by the parties themselves. We comment that it would undoubtedly increase the sense of fairness on the part of the person who lost the case if points, on which the Decision was based, had been ventilated at the hearing. But we agree with Mr Wilson that it is not an error of law for the Industrial Tribunal to make a comment on a factual matter which has not been specifically raised in the hearing itself.The second point made by Mr Wilson was that the statistics produced by Mr Mian did not in fact assist his case, because it was wrong to make the comparisons shown in the graph. It was submitted that it is wrong to compare the ratio of white to non-white employees in each grade at a particular point in time and to point to any difference in those ratios as evidence of race discrimination. The correct comparison to make was between the ratio of whites to non-whites in the higher grade, with the ratio of whites to non-whites in the lower grade at the time those in the higher grade were in the lower grade. A comparison of the ratios in different grades at the same point in time would only be statistically significant if the ratio of white and non-white employees in each grade remained constant during the period taken to be promoted to the higher grade. If the lower grade has seen an increase in the proportion of ethnic minority employees, any comparison which includes those candidates is invalid, as it includes those who, having only recently been appointed to the lower grade, are not in the field for promotion. Or, put another way, as the Tribunal observed, there will be a time lag before the ratios of white and non-white employees in each grade equal out.As to the point on small sample sizes referred to in the Tribunal, that was a point which Mr Mian did not pursue on the Appeal. Mr Wilson concluded by submitting that, in any case, the statistics were only one aspect of the evidence to be taken into account by the Tribunal in determining the issue of whether the decision to refuse promotion to Mr Mian was taken on racial grounds. Having considered all the evidence, including the oral evidence given by the board members, the Tribunal were entitled to find that the statistics did not prove discrimination on racial grounds.We are indebted to both parties for the careful way in which the submissions were made. The conclusion we reach on this point is that the Tribunal has not committed any error of law. The Tribunal's conclusion, as we have mentioned, was that they were unable to infer from the statistics that they established racial discrimination. That is a conclusion which they were entitled to reach on the evidence before them. There was no mis-direction by them about the legal significance of these statistics. They took them into account, but did not find that they were material from which they could make the inference which Mr Mian submitted they should have made. There has been no substantial error even the appreciation of the factual material. On that point, therefore, we find that they Tribunal decision was not flawed by legal errors.On the second point, the experience point, the passage in the Decision criticised by Mr Mian is set out under the heading "The question of relevant experience". The Tribunal found that Mr Mian had 3 1/2 years practice experience with the Department before he went on the MBA course in 1988 and observed that that was not mainstream management experience. He then had 2 years experience on the MBA course. The Tribunal made a comment on this which Mr Mian has criticised. The Tribunal said at paragraph 8 (ii):
"... it is not possible to equate the projects undertaken in the MBA course with the experience sought by the interviewing board..."
They later commented that Mr Mian's experience prior to the MBA course and his experience on the course may have been relevant, but inquiries into it would not have demonstrated that it was sufficient. Any pre-conceived ideas formed by the board were formulated on the papers, but this was inevitable. The board did not fail to establish any vital facts. They observed (and this was as a result of a submission made by Mr Mian), that in one case a candidate's (and this is a successful candidate's) MBA was treated as a positive factor, but they say it was only one of many factors taken into account, including the fact that that candidate was a grade higher than Mr Mian and was doing a managerial job.Mr Mian's criticism of this passage is as follows: that it was not valid for the Tribunal to say that the MBA course experience was not to be equated with the experience sought by the interviewing board. It was pointed out that he was sent on the MBA course to gain experience. What matters is abilities, not where you get them from. It was only right to consider a number of matters which the Tribunal had before it in relation to the criteria applied by the interviewing board and the guidelines for reaching a decision on a promotion application. On this part of the case, Mr Mian referred us to a number of documents in addition to his CV already mentioned. We will refer to the grade 7 promotion board criteria which set out five headings, problem solving ability, decision making, ability to acquire knowledge skills, representational skills and ability to manage staff and resources. No specific mention is made of managerial experience. He also referred to the staff memo of 4 February 1988 by Mr Higson, relating to the MBA course on which Mr Mian was sent and a comment of Mr Higson that this would be part of an:
".. experience-gathering programme...so that his [Mr Mian's] total absorption on this training programme would be 1 1/2 to 2 1/2 years..."
He also referred to the department's guidelines on reaching a decision about the suitability of candidates applying for promotion. He pointed to a paragraph which referred to training investment and particularly referred to specialist candidates who demonstrate their fitness for the higher level to work within their specialism and show an aptitude to do some other job at the higher level and who should therefore be recommended for promotion. He also referred to paragraph 4 of that document which said:
"... 4. In considering candidates, therefore, boards should seek to identify the range of posts from which an individual is likely to be fitted. They should be prepared to promote individuals who, while lacking a broad range of experience, nevertheless can demonstrate that they have the skills appropriate to the next level of work in at least two main areas of the Department's businesses..."
In the light of those documents and the evidence, Mr Mian submits that there was much evidence before the Tribunal which rendered the conclusion of the Tribunal in relation to practical experience perverse. He referred in addition to the matters I mentioned, to the evidence given by his witness, Dr Young, about the practical nature of the MBA course and its relevance to the selection criteria. He highlighted in oral argument the different treatment of another candidate whose MBA was seen as a positive factor in his selection.So Mr Mian repeated his submission that, when you look at all the material that was before the Industrial Tribunal, no reasonable tribunal could have come to the conclusion that it did about the relevance of practical experience to the decision of the board not to promote Mr Mian. That again is part of the argument overall that the explanations being offered by the Department to the Tribunal as reasons for not promoting Mr Mian, were unsatisfactory. Therefore the Tribunal could only take one course. That was to infer a decision against him on racial grounds.Mr Wilson dealt with this point in his argument as follows: there was clear evidence before the Tribunal that an MBA on its own would not secure promotion: that, as regards the specific candidate who had an MBA, that was regarded as a positive factor; that candidate had, on the evidence, experience over a range of jobs and was already was at a higher grade than Mr Mian and was already on temporary promotion to grade 7. He submitted that the board were looking for ability, not just potential. It was clear from the evidence that proven experience was considered to be important by the board in assessing a candidate's abilities.Mr Wilson submitted that, upon the material before them, the Tribunal was entitled to accept the explanation given by the Department as satisfactory and was entitled to decline to infer that the decision not to promote Mr Mian was on racial grounds. We agree with Mr Wilson's submissions. There is, on this point, an area of fact exclusively within the province of the Industrial Tribunal. Views may differ about the value of the MBA course in relation to a particular application for promotion; views may differ about how important different types of practical experience are for a particular job. Different decisions may be reached in relation to different candidates, but each candidate has to be considered on his own particular facts and it is very difficult for a person making a complaint of the kind Mr Mian is making, to ask a tribunal to draw an inference of racial discrimination, simply by comparison of one case with another. Each case would have to be examined in detail to see how valid the comparison was. In our view, the Tribunal was entitled to come to the conclusions it did in paragraph 8 (i) to (vii) of the Decision on the material before it. It is impossible to reach the conclusion that it was perverse to reject Mr Mian's arguments on that point.The third ground relates to the weighting of the interview. It is not disputed that Mr Mian interviewed well. According to the Department's own guidelines, it is common ground that more weight should be attached to the interview when there are gaps in the reporting history or written evidence of candidates. The Tribunal's conclusion on this point was that the board did in fact give great weight to the interview and that explained the recommendation the board made as to the future of Mr Mian and the Department.

(e) :

"... (e) proper weight to the interview, but this does not mean that ability at interview should override lack of experience..."
Mr Mian criticised the comments. He submitted that no reasonable tribunal could have concluded that great weight had been attached by the Board to the interview. His argument was that, if great weight had been attached to the interview, then, as he interviewed well, he would have been appointed. He says the Tribunal should have made an inference from a number of matters that he had not been given the weight for the interview which he should have been and the way in which he was treated by the board is explicable only on racial grounds. He referred to the fact that the members of the interviewing board Mr Staniforth and Ms Shaw, had made comments from which he says the inference is that weight was not being attached to the interview that should have been. In particular, he quoted a statement from Mr Staniforth, which we have seen in the witness statement in the Respondents' Bundle as follows:
"... In Mr Mian's case the lack of written evidence meant that he would have had to make a superhuman effort to be marked fitted on the basis of his interview alone, as less weight is placed on the interview than on written evidence..."
Mr Mian therefore submits that the Tribunal again had acted in a way that no reasonable Tribunal would have done.Mr Wilson submitted that Mr Mian did interview well and the effect of the favourable interview was that the board concluded that although he might be ready for promotion at some future time. He was not ready at that time. That was a conclusion that the Tribunal were entitled to reach on the evidence before them. We agree with Mr Wilson that there is no error of law in the way in which the Tribunal dealt with this point. Although great weight was attached to the interview on the finding of fact made by the Tribunal, that did not inevitably produce the result that Mr Mian should be appointed. As Mr Mian himself appreciated in the arguments to us, performance in the interview, though weighted, is not the only factor taken into account in deciding whether or not to promote an applicant. All other factors have to be taken into account. It cannot be inferred on the facts of this case that the board acted on racial grounds in deciding to recommend Mr Mian for future promotion, rather than promotion at that time. We therefore reject the contention that there was perversity in this part of the Decision.The fourth and final point made by Mr Mian related to the specialist candidate position on an application for promotion. He referred to the statement of the Tribunal that Mr Mian was at an disadvantage as being a specialist candidate.

(c) ;

"... (c) We think it likely that there was a bias against specialist candidates. This tends to occur in all walks of life when promotion is under consideration. This is thousands of miles away from racial discrimination, however..."
On this point, Mr Mian referred again to the guidelines of the Department of which I have read (paragraphs 4 and 6) relating to specialist candidates who might lack a broad range of experience, but nevertheless are able to demonstrate that they have skills appropriate to the next level of work and show an aptitude to do some other jobs at a higher lever and that people who impressed the board should be recommended for promotion.Mr Mian also referred to his CV, showing that he was not to be regarded as a specialist candidate. He pointed to another candidate from the same department, undertaking the same kind of job as him, who was successful in the selection procedure. So again on this point Mr Mian submits that no reasonable tribunal could have come to the conclusion that it did about the treatment of Mr Mian as a specialist candidate. His CV showed that he should not be so regarded. The guidelines, if they were followed as they should have been, would show that if he was a specialist candidate, he should not have been regarded as being at a disadvantage.Mr Wilson's answer to this point was that there was evidence before the Tribunal to support the conclusion that a candidate in a technical grade may have been at a practical disadvantage. He referred us to a number of passages which he quoted from the evidence before the Tribunal. He also referred to evidence from the Department of specialist candidates marked "qualified" by the board who were all in the SEO grade or its professional equivalent.We have reached the same conclusion on this point as we have on the other three. That is, that although we fully understand the comments which Mr Mian makes on the findings of the Tribunal and the criticisms he formulates of them, he has not gone as far as he has to to establish an error of law. He has not persuaded us that no reasonable tribunal could have come to the conclusions that it did in relation to the question of him being treated as a specialist candidate.The conclusions we have therefore reached are these: that as we have said on the outset, we can only hear appeals on questions of law. We are not entitled, as an Appeal Tribunal, to come to a different conclusion than the Industrial Tribunal, which examined all the documentary evidence and heard all the witnesses, simply because we might disagree with some of the views expressed about the evidence which they have heard. We can only interfere if we are satisfied that the decision is one which no reasonable tribunal could have reached. I repeat that that is very difficult to establish; appeals rarely succeed on that ground, because tribunals up and down the Country perform their task conscientiously and reach decisions that are reasonable, even though they are not the same decisions that other tribunals would reach or that this Tribunal would reach. I have dealt with the submissions in detail, because Mr Mian had the ability and courtesy to explain those points to us in detail. We have carefully considered all the arguments, but we are unable to conclude that the four points he has made, either separately or taken altogether, establish perversity. If he has failed to establish perversity, he has failed to establish an error of law. There is no question in this case of mis-interpretation of statutory provisions, or mis-application of legal principles decided in the authorities. For those reasons, this Appeal will be dismissed.