Rafiq v WM Morrison Supermarkets Plc & Anor [1994] UKEAT 920_94_0812

EAT

Rafiq v WM Morrison Supermarkets Plc & Anor

[1994] UKEAT 920_94_0812 · 1994-12-08

MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an Appeal by Mr Rafiq against the Decision of the Industrial Tribunal held at Leeds in February and July of this year.

The Tribunal met for a total of 17 days to consider a complaint by Mr Rafiq against Wm Morrison Supermarkets PLC and their Personnel Director, Mr Ward, of racial discrimination contrary to Section 4 of Race Relations Act [1976] and of victimization contrary to Section 2 of that Act.

For reasons stated in a 24 page Decision notified to the parties on the 10th August 1994, the Tribunal unanimously decided that Mr Rafiq was not discriminated against or victimized by either of the Respondents.

Mr Rafiq was disappointed with the Decision and he appealed. Having unsuccessfully sought to obtain a review of the Decision, he appealed by a Notice of Appeal dated 16th September 1994. Mr Rafiq was notified by the Employment Appeal Tribunal that his Appeal would be set down for a Preliminary Hearing, to determine whether his appeal raised an arguable point of law. This Tribunal only has jurisdiction under Section 136 of the Employment Protection Act to hear appeals on questions of law which arise in proceedings before an Industrial Tribunal. There is no appeal on questions of fact.

Having been notified of the Preliminary Hearing, Mr Rafiq then made an application for production of the Notes of Evidence of the Hearing. He stated in a letter of 25th November:

"I am not able to have a full chance to put my case across unless I have these notes."

That application came before His Honour Judge Hull, during my absence, on the 5th December 1994 and he directed on Mr Rafiq's application, in person, that the application for Chairman's Notes should be stood over and be determined by this Tribunal at the Preliminary Hearing of the Appeal today.

There are, therefore, today before the court, two matters, first the question whether

Mr Rafiq's appeal raises an arguable question of law. If it does not, it will be dismissed today. If it does, we would then have to consider whether it was a case in which it was appropriate toward a Chairman's Notes in order to decide any point that arose at the Full Hearing of the Appeal.

The background to the case is that Mr Rafiq had made three unsuccessful applications to be put on the management training scheme operated by Wm Morrison Supermarkets Limited, who run about 70 supermarkets in different parts of the country and employ over 22,000 people. They run a management training scheme each year, on which they recruit about fifty candidates internally and externally.

Mr Rafiq first applied for a place on the scheme in 1990. As a result of his failure to get on the scheme, he successfully brought proceedings before the Industrial Tribunal for racial discrimination. He was awarded compensation of £2,750 by the Leeds Industrial Tribunal in December 1990. He made an unsuccessful application in 1991 which led to further proceedings, also on grounds of racial discrimination. That case was settled by the

Wm Morrison Supermarkets PLC, without admission of liability, on payment of compensation of £1,750.

The Tribunal referred to the circumstances in which this complaint was brought. Mr Rafiq applied to go on to a management trainee scheme for 1993. He put in his application. He was refused a place on the scheme. He therefore brought this case for racial discrimination, by an application presented to the Tribunal on the 27th July 1993.

The complaints were of both racial discrimination under Section 4 and of victimization under Section 2 of the [1976] Act . The Tribunal heard a great deal of evidence on this complaint which was strenuously resisted by Wm Morrison Supermarkets. The evidence showed that, after the criticisms made by the Industrial Tribunal at Leeds on the first successful complaint of Mr Rafiq, the Respondents completely altered their Equal Opportunity procedures, including those for selection for the management trainee scheme. They brought in Mr Ward, who is the second Respondent, as a group personnel manager, in December 1991. He is now the personnel director of the Respondents. He comprehensively re-organized the system, including new types of application forms and procedures. He brought in to assist him a management consultant, a Mr Rowlands.

The Tribunal dealt with the detail of the unsuccessful application by Mr Rafiq which gave rise to these proceedings. It is not necessary to repeat the detailed findings of fact which the Tribunal made in relation to the sifting system for selection, the use of sift sheets, or the system of scoring made on those application forms.

What is important to note in the Decision, is, first, the general assessment of the witnesses made by the Tribunal. On page 9 of the bundle, the Tribunal said:

"(i).......Where there has been any conflict in the evidence on any material issue between that of the applicant and that of respondents witnesses the tribunal has unhesitatingly preferred the evidence of the respondents' witnesses, whom we regarded as credible and honest witnesses. We were particularly impressed by the evidence of Mrs K Roberts and Mrs P Mosey who were the persons who evaluated the candidates' forms. We considered that the applicant's perception of the events was distorted by his mistaken but utter and unshakeable belief that there had been a conspiracy against him from "the very highest level" of the respondents which ultimately manifested itself in "a covert plan" by Mrs Roberts and Mrs Mosey to down grade his marks."

The Tribunal considered in detail all the points made by Mr Rafiq who conducted his case in person before the Tribunal. Having stated the material facts, the Tribunal referred to the relevant sections of the 1976 Act and to the leading decisions on the interpretation of that Act.

When the Tribunal came to apply the relevant legal principles and provisions to the facts found by them, they concluded that there was no victimization and there was no racial discrimination. The Tribunal concluded by saying this, in the final paragraph of their Decision:

"During the course of this lengthy hearing, in addition to his allegations of race discrimination including victimisation, the applicant has made several other allegations against the respondents and their staff including perjury (for example, that no tape recording was made of the conversation between Mr Ward and himself on 13 May 1993; the falsification of documents (for example, again, the transcript of the telephone conversation which took place between Mr Ward and himself on 13 May) and conspiracy from "higher authority" downwards to racially discriminate against the applicant. The tribunal firmly rejects each and every one of those allegations. We consider them to be entirely without foundation. We consider that since Mr Ward joined the respondents in September 1991 the respondents have acted with vigorous determination to eradicate the mistakes of the past, not merely for the purpose of avoiding further accusations of a similar nature but in a spirit of endeavouring (by the adoption of a new Equal Opportunities Policy and by training its relevant staff in that policy by seminars and making a breach of such policy a disciplinary offence) to ensure that the taint of discrimination will not affect their future relationships with employees or applicants for employment."

Mr Rafiq sought a review of that Decision on the 24th August 1994. He raised a number of particular criticisms. He raised a criticism that, on the evidence, either in chief or cross-examination, there were important facts which the Tribunal should have considered but had not mentioned in their account of the facts in their Decision. The two specific instances he gave were first, a conversation between Mr Ward and Mr Rowlands concerning his application form and secondly, an admission by Mr Rowlands in cross examination, that at no time had he seen the 1990 Tribunal Decision.

Mr Rafiq also complained in the Application for Review, that Mr Lynch, who was counsel representing the Respondents, told the Tribunal that Mr Rafiq had nine cases of race discrimination and that this, to some extent, caused the Tribunal to draw the inference which I have mentioned, that is that Mr Rafiq's perception of the events was distorted by a belief that he was the victim of a conspiracy.

In the review considered on the 2nd September 1994, the Tribunal refused to grant the application on the grounds that it had no reasonable prospects of success. The Tribunal said that there was no merit in the points which Mr Rafiq had made relating to the evidence of Mr Ward and Mr Rowland, in view:

"Of the overwhelming preponderance of evidence in favour of the Respondents."

The Chairman also stated in the review decision:

"2. It is incorrect that the tribunal drew the inference as to the applicant's perception of the events from Mr Lynch's observations. Such inference was drawn from the evidence in chief and cross examination of the applicant and his cross examination of the respondents' witnesses."

On the hearing today, Mr Rafiq has canvassed, as points for his appeal, the very same complaints which he made before the Industrial Tribunal on the Application for Review.

We have questioned Mr Rafiq in some detail about the points which he is raising. They are the same points. What he says in broad outline is that the Tribunal erred in their Decision because they failed to take account of items of evidence, some given in cross examination, some in chief, which showed inconsistency in the evidence given by the Respondents own witnesses. He also repeated his complaint but Mr Lynch's reference in his submission to the Tribunal to the nine cases of racial discrimination brought by Mr Rafiq. He added to this a complaint that the Tribunal had failed in its Decision to take account of the fact that different answers had been given by the Respondents in answer to the questionnaire, than was given in the evidence given by some of the Respondents' witnesses.

We have considered these complaints about the Decision. In our view, they are all complaints about the facts found by the Tribunal. The substance of the complaints is that the Tribunal's findings of fact are flawed by their failure to consider individual items of evidence which, in Mr Rafiq's view, favoured him rather than the Respondents, whose evidence was by and large accepted. Added to that, as I mentioned, is the complaint about Mr Lynch's submission.

Having considered the Decision in detail, the Review Application, and the reasons given on the review, we are satisfied that there is no arguable point of law raised on this Appeal. Mr Rafiq has not been able to identify any legal point in this very detailed and careful Decision. He has not identified any part of it which contains an erroneous interpretation of the relevant positions of the 1976 Act or an erroneous understanding of the principles laid down by the courts, as applicable to Race Discrimination cases. He has not been able to identify any misapplication of that law to the facts found by the Tribunal.

This is an attempt, in our view, to re-open the facts of the case and obtain a re-hearing on the Appeal. We are not permitted to do that. It follows that the Appeal will be dismissed and the application for the production of the Chairman's Notes of Evidence will also be dismissed.