Usdaw v Das [1994] UKEAT 94_91_2405

EAT
Usdaw v Das
[1994] UKEAT 94_91_2405 · 1994-05-24
MR JUSTICE MUMMERY (PRESIDENT) This is an appeal by the Union of Shop, Distributive and Allied Workers ("USDAW") against the decision of the Industrial Tribunal held at Liverpool over a period of five days in September 1990. For Full Reasons notified to the parties on 18th January 1991 the Industrial Tribunal unanimously decided that USDAW had unlawfully discriminated against Mr Das contrary to the provisions of the Race Relations Act 1976 and Sex Discrimination Act 1975. By Notice of Appeal dated 16th May 1991 USDAW appealed against that decision. The appeal first came on for hearing on 17th May 1993, but was then adjourned to a date to be fixed. After that date the parties came to an agreement that the appeal should be allowed by consent and that the Order of the Industrial Tribunal should be set aside. When the Appeal Tribunal was notified of the agreement, the parties were informed that it is not the practice of the Appeal Tribunal (or of any English appellate court) to make an order by consent allowing an appeal and reversing the decision appealed against. The parties were informed that the appeal would have to be argued in order to satisfy the Tribunal that there was an error of law in the decision. The reason for the practice of the Appeal Tribunal in refusing to allow appeals by consent is explained in a recent decision of the Appeal Tribunal: J Sainsbury Plc v. Mrs B Moger (25th January 1994) .At the adjourned hearing of the appeal only USDAW was represented. Their counsel, Mr John Hand QC, has given us invaluable assistance for which the Tribunal is particularly grateful in the absence of a contrary argument on behalf of Mr Das.Mr Hand has satisfied us that there is an error of law in the decision of the Industrial Tribunal, that the appeal should be allowed and that the matter should be remitted to the Industrial Tribunal. It appears, in the light of the position now taken by Mr Das, that no further action will be taken by him on the matter. If he does not prosecute the proceedings then it will be open for the Industrial Tribunal to dismiss the remitted complaint for want of prosecution.

The background facts

The following facts were found by the Industrial Tribunal:(1) Mr Das, who was born and educated in India, came to live in the United Kingdom in 1960 when he was 32 years old.(2) In 1971 he became a member of USDAW. In 1975 he was appointed a branch secretary. In October 1976 he was appointed an area organiser. The structure of the organisation of USDAW is that it has a head office in Manchester. There is a President, an Executive Council, a General Secretary (Mr Garfield Davies) and a Deputy Secretary. There are seven national officers who have no management functions. They deal with such matters as collective agreements at national level. There are eight divisional organisers and there are eight deputy divisional organisers to whom 100 area organisers report. Various officers of the Union are responsible for the running of the day-to-day affairs. There are periodic meetings of the Executive Council and there is also an Annual Delegate Meeting.(3) Mr Das remained an area organiser until he resigned in 1989 in the circumstances described later. Between 1982 and 1984 Mr Das attended a diploma course in Trade Union Studies at Liverpool University. In 1986 he was appointed to a panel of independent experts for equal pay cases.(4) The present dispute was preceded by nine applications for various posts made by Mr Das. He was short-listed for all but one of them, but was not ultimately successful in securing an appointment to any of them. In 1979 Mr Das applied to be a deputy divisional organiser. In 1981 he applied for the post of a national officer and received a full interview. He applied to be an Education Officer, but was not short-listed. A Mr Colin Thomas, who Mr Das acknowledged was an excellent candidate, was appointed. In 1983 Mr Das was interviewed to be a divisional organiser and also a deputy divisional organiser. In 1985 he was interviewed for the post of a national officer. A less experienced person than him was appointed. In April 1989, when he was aged 51, Mr Das applied for two posts, The first was for the post of a national officer. There were 19 applicants drawn from 6 divisions and they included 4 divisional organisers. Three of the applicants, including Mr Das, were over 50 years old. The policy was not to short-list those who were over 50. The General Secretary drew up a short-list. The name of a Mrs Leahy, who was over 50 years old, was added to the list by the Executive Council. The appointment was secured by Mr Terry Savage. The procedure which was followed was one which had been followed in other cases; that is that the General Secretary would make a provisional short-list of candidates and the final short-list would be made by the Executive Council who could add to it. The procedure was that divisional officers were appointed by the full Executive Council from a short-list and deputy divisional officers were appointed by a sub-committee of the Executive Council.(5) In 1989 Mr Das also applied for the post of a divisional officer (Manchester Division). There were 20 or 21 applicants, not 14 as the Tribunal apparently thought. Seven were short-listed. Mrs Leahy's name was added to the list by the General Secretary. Mr Alf Slater, a deputy divisional officer, was appointed to the position. He was aged 58. Mr Das was not short-listed or interviewed.(6) In June 1989 a meeting took place between Mr Das and the General Secretary. Mr Das made allegations of racial discrimination in the short-listing. On 7th July 1989 he wrote a letter asking to be supplied with criteria for the selection of candidates for short-listing for these posts and for job profiles. On 21st July 1989 a further meeting took place with the General Secretary. On 14th September 1989 Mr Das presented his complaint of racial discrimination and in December 1989 he presented a complaint of sex discrimination.

The Decision of the Industrial Tribunal

The Tribunal found Mr Das was unlawfully discriminated against contrary to the Race Relations Act 1976 and the Sex Discrimination Act 1975 for the following reasons:-

(1) The Tribunal correctly stated

"...The applicant has to prove his case and in considering whether he has discharged that burden we have to consider the primary facts. If those facts demonstrate that he has been less favourably treated than others and the circumstances are consistent with the treatment being on grounds of race, we must consider the explanation given for that less favourable treatment."
(2) The following passage in the Tribunal's decision was criticised by Mr Hand QC in his submissions. The Tribunal said:
"... If the respondent shows, as we have said, that there is an innocent and reasonable explanation for that less favourable treatment, then the applicant fails to prove his case. If, on the other hand, the respondent does not satisfy the Tribunal that there is an innocent and reasonable explanation for that less favourable treatment, then the Tribunal is entitled to draw the inference that the less favourable treatment was on racial grounds. After a painstaking and detailed consideration of the facts in this case we are satisfied that we may properly draw the inference that the less favourable treatment undoubtedly received by the applicant was on racial grounds and we so find. The respondent does not satisfy us that there was an innocent and reasonable explanation for what happened, and we so find.
(3) The Tribunal also found on the complaint of sex discrimination that there had been positive discrimination contrary to the 1975 Act. They pointed out that this "counts as discrimination under the Act just as much as the normal forms of discrimination." The discrimination took the form of including a woman, Mrs Leahy, in the short-list. Although the Tribunal thought that the motives which led to the inclusion of Mrs Leahy were laudable and well-intended, they came to the conclusion that that amounted to positive discrimination.

The submissions of USDAW

The main point raised on the appeal concerned the finding of racial discrimination. Before he made his detailed submissions Mr Hand reminded us of the relevant principles laid down by the Court of Appeal as to the inference of racial discrimination. He referred to the decision in King v. Great Britain China Centre [1992] ICR 516 , in which the Court of Appeal reviewed the earlier authorities on the onus of proof in race discrimination cases and considered the circumstances in which a Tribunal would be entitled to infer race discrimination. From those cases Neill LJ extracted the following principles for guidance in race discrimination cases. It is important to note that the Industrial Tribunal did not have the benefit of this summary at the hearing since, at that time, the case of King had not been decided.

Lord Justice Neill said -

" (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases discrimination will not be ill-intentioned but merely based on an assumption that he or she would not have fitted in.(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. Those inferences can include, in appropriate cases, any inference which it is just and equitable to draw in accordance with S.65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put in North West Thames Regional Health Authority v. Noone [1988] ICR 813, 822, "almost common sense." At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."Applying those principles Mr Hand QC submitted that the test enunciated and applied by the Industrial Tribunal was the wrong test. The Tribunal said they were not satisfied that there was an innocent " and reasonable " explanation for what happened and therefore inferred that there was unlawful racial discrimination. The words " and reasonable " do not appear in the guidelines laid down in King nor do they appear in the earlier cases. What the Tribunal had done was to introduce into the exercise of inference an objective element not warranted either by the terms of the legislation or the authorities.

Conclusions

In our judgment, there are errors of law in the Tribunal's decision. In the absence of any representations from Mr Das, we have relied heavily on the assistance given by Mr Hand in his full and balanced argument which lasted most of the day. As already mentioned, he has persuaded us that the appeal should be allowed. Before we state the reasons for that decision we should point out that Mr Hand originally submitted that this Tribunal should substitute for the decision of the Industrial Tribunal its own decision to the effect that Mr Das had not been unlawfully discriminated against either on the grounds of race or sex. When we pointed out to Mr Hand the difficulties in following that course, he did not pursue that particular point. He asked that we remit the matter to an Industrial Tribunal. If the matter is pursued by Mr Das, which seems most unlikely, it will be for the Regional Chairman to decide whether the remitted case should be heard by the same Industrial Tribunal or a different one.

The reasons for our conclusions are as follows:-

A Race Discrimination

The approach of the Tribunal was to apply a more stringent test for making inferences than laid down in any of the authorities. At the date of the decision the Tribunal did not have the benefit of Lord Justice Neill's review of the earlier authorities and the guidance which he extracted from them. In the passage already quoted the crucial part states that if no explanation is put forward for disparate treatment in circumstances which raise the possibility of racial discrimination or if the explanation is considered by the Tribunal to be "inadequate or unsatisfactory", it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. The Tribunal, instead of asking whether the explanation given by USDAW was adequate or satisfactory, went further and asked whether it was "an innocent and reasonable " explanation. That approach is more stringent than laid down in the authorities as it introduces an objective element. It may be true that in many cases the result will be the same whichever approach is adopted. If the explanation is "innocent and reasonable" it may well be adequate or satisfactory. Equally, if the explanation is not innocent and reasonable, then it may be regarded as inadequate or unsatisfactory. Mr Hand is correct, however, in pointing out that reasonableness is not the point. The question is whether the Tribunal considers that the employers' explanation of the reasons for disparate treatment satisfies it that race is not the reason for that difference. The difficulty is highlighted by the fact that the Tribunal accepted evidence given by the General Secretary who made the shortlist that was finalised by the Executive Council and also by Mr Tierney, the President, to the effect that they held "very strong views, which they had publicly expressed on many occasions, abhorring racism". The Tribunal added
"We do not, in any way, doubt the veracity and sincerity of those expressions of their personal views."
The Tribunal went on to point out that discrimination might take a disguised form, that an employer may not be consciously aware of it, that discrimination might arise in their organisation even though they held strong personal views against it and that the intention or motive to discriminate was not a necessary condition of liability. The Tribunal said, "Our main task is to consider whether it is appropriate to infer racial discrimination from the facts of the case." They quoted from a number of decisions later reviewed in the King case, notably Chattopadhyay and Khanna 's case describing the circumstances in which an inference of discrimination could be made if the employer failed to provide an explanation for disparate treatment to the satisfaction of the Tribunal. In none of the cases cited, however, was there a reference to the drawing of an inference in the absence of a "reasonable explanation".(2) Mr Hand has also convinced us that there was a factual error in paragraph 6(18) of the Decision which shows that the Tribunal misinterpreted the evidential material on short-listing relevant to the making of an inference of discrimination. The Tribunal appeared to have concluded that Mr Das was the only applicant from the North West Division who was not short-listed. If that was the correct position then it would easier to understand how the Tribunal made an inference of racial discrimination. In fact the evidence was, as appears from the Chairman's Notes, that there were three candidates from the North West Division who were not short-listed. Two of those who were not short-listed came from Manchester and they were white. There may be a significant difference between a situation which the only person not listed from a particular division was of an ethnic minority, which the Tribunal believed to be the case, and a situation in which other applicants who are white also failed to be short-listed. This misunderstanding of the facts may have led the Tribunal to make an inference which it would not have made if it had correctly appreciated the facts.

B Sex Discrimination

Mr Hand QC submitted that the Tribunal failed to apply the correct test in relation to the claim of sex discrimination. The correct test was the "but for" test as laid down, for example, in James v. Eastleigh Borough Council [1990] ICR 554 at 566H - 568A and 576B - G. He submitted that if it had applied that test then the Tribunal would have had an opportunity to consider the fact that men were not excluded from the short-list altogether and that there was no ceiling on the number of men who could be included on the short-list. If that test had been applied the Tribunal would not have concluded that adding one white woman, Mrs Leahy, to the list, was discriminatory. It did not exclude Mr Das or any other man from the list. In those circumstances he submitted that the Tribunal could not properly have come to the conclusion that Mr Das would have been short-listed for interview "but for" the fact that he was a man. We accept this submission.For these reasons we allow the appeal both on the race and the sex discrimination complaints and the matter is remitted to the Industrial Tribunal.