D'Souza v London Borough Of Lambeth [1995] UKEAT 266_92_0105

EAT
D'Souza v London Borough Of Lambeth
[1995] UKEAT 266_92_0105 · 1995-05-01
MR JUSTICE MUMMERY (PRESIDENT) This is an appeal by Mr D C D'Souza against the decision of the Industrial Tribunal held at London (South) on 13th and 17th January 1992. In Full Reasons notified to the parties on 17th February 1992 the Industrial Tribunal unanimously dismissed claims against the London Borough of Lambeth ("the Council") for discrimination on the grounds of race and victimisation contrary to the provisions of the Race Relations Act 1976.Mr D'Souza appealed by a Notice of Appeal served on 30th March 1992. He has conducted his appeal in person. On 7th April 1995 Messrs Clifford Chance, solicitors for the Council, informed the Employment Appeal Tribunal that the Council would not be represented at the hearing. No skeleton argument was provided by the Council, but a reply to the amended Notice of Appeal was submitted and a set of written representations provided to the Industrial Tribunal was also supplied.

The course of the proceedings

The proceedings have had a long and chequered history. It is necessary to summarise their course in order to understand some of the arguments presented on the appeal.(1) The proceedings were started as long ago as 14th October 1987 when Mr D'Souza presented an Originating Application to the Industrial Tribunal complaining of race discrimination and victimisation by the Council by whom he had been employed from March 1986 as a Group Manager, Information Systems. The essence of his complaint was that he had been subjected to racial harassment soon after a Mr Mwale was appointed acting Director of Management Services. He complained that he had been discriminated against in matters of promotion, training and other work-related concerns. He complained to the Chief Executive and notified him of his intention to complain to the Industrial Tribunal, following which he was subjected to continuing victimisation. The Originating Application contains particulars of instances of unsuccessful applications by Mr D'Souza for promotion and training in 1987.(2) The Council contested the claim in the Notice of Appearance dated 16th November 1987. The Council's case was that, in respect of the applications for promotion, they were considered in accordance with the Council's selection procedures and Mr D'Souza's non-selection was for justifiable reasons unrelated to race. Similarly, selection and rejections for temporary acting arrangements and for training were made on justifiable grounds other than race.(3) The hearing of the application at the Industrial Tribunal sitting at London (South) lasted 14 days at the end of October and beginning of November 1988, finishing in January 1989. In Full Reasons notified to the parties on 27th April 1989, the Industrial Tribunal unanimously decided that Mr D'Souza had not been the victim of racial discrimination , racial victimisation or racial harassment in the employment field.(4) Mr D'Souza appealed against that decision by a Notice of Appeal dated 6th January 1989. Pursuant to an order of the Employment Appeal Tribunal made on 13th December 1990 leave to amend the Notice of Appeal was granted and an order was made for the production of Chairman's Notes. Those Notes were ultimately produced on 21st June 1991. They run to 112 pages. Initially, the Council resisted the appeal which was based, inter alia, on criticisms of the way in which the Industrial Tribunal hearing was conducted. It was alleged that there was a failure to pay sufficient attention to documentary evidence and oral evidence of witnesses, failure to make legitimate inferences and failure to give sufficient weight to the precedents cited to the Tribunal.(5) As the hearing of the appeal approached, the Council, on advice, formed the view that the Chairman's Notes were incomplete and did not accurately reflect the evidence given at the Tribunal. The dissatisfaction of both sides with the decision led to an agreement between Mr D'Souza and the Council to make a request to the Employment Appeal Tribunal that the matter should be remitted to the Industrial Tribunal for rehearing. The hearing of the appeal took place on 8th July 1991. By consent the appeal was allowed, the cross-appeal was dismissed and the matter was remitted for rehearing to a differently constituted Industrial Tribunal as ordered by the Regional Chairman.(6) The re-hearing took place before a differently constituted Tribunal on 13th and 17th January 1992. Mr D'Souza's complaint was dismissed. He appealed. His appeal first came before the Employment Appeal Tribunal on 20th April 1993 when, on a preliminary hearing, the Tribunal directed that the appeal proceed to a full hearing and the production of the Chairman's Notes of Evidence was ordered. They were produced in October 1993. They run to 23 pages.(7) At the preliminary hearing the Employment Appeal Tribunal dealt with five appeals by Mr D'Souza. They dismissed the other four. The other four were as follows:(a) A decision of the Industrial Tribunal held at London (South) on 9th and 10th December 1992. In that case Mr D'Souza succeeded in claims for racial discrimination and was awarded damages of £3,000, including aggravated damages. He appealed on a number of grounds, including the alleged inadequacy of the compensation. The Appeal Tribunal held that there was no arguable point of law in his appeal.(b) Mr D'Souza also appealed a decision at a hearing on 10th November which resulted in an order in his favour for payment of £500 compensation for victimisation. There was no point of law in that appeal.(c) He appealed against a further decision of the Industrial Tribunal which held that there was no discrimination by the Council in failing to appoint him to be the head of Computer Services. There was no point of law in that appeal.(d) Finally, Mr D'Souza appealed a decision which upheld his complaint of racial discrimination in connection with the Council requiring him to go on special leave with a view to his dismissal. There was a finding of victimisation and he was awarded compensation of £3,000. His appeal against that order had no arguable point of law.(8) This appeal came again before the Employment Appeal Tribunal on 7th June 1994 when Directions given for the amendment of the Notice of Appeal, the filing of documents, the provision of copies of documents and the exchange of skeleton arguments.

Finding of fact by the Industrial Tribunal

The Industrial Tribunal made findings of fact after a hearing conducted by counsel on behalf of Mr D'Souza in difficult circumstances described to in paragraph 5 of the Full Reasons. The Council was not represented. No evidence was called on its behalf. It did not, however, concede the case. There were in evidence agreed bundles of documents and written representations submitted by the Council. The written representations were not treated as evidence. The only evidence given to the Industrial Tribunal was by Mr D'Souza himself.On the basis of the material before them, the Tribunal found the following facts:-(1) Mr D'Souza was born in India in 1935. He obtained a Diploma in Commerce and Accounts at the University of Bombay. In 1962 he came to live in England. From 1965 he worked in gradually more senior posts with computers.(2) On 12th November 1984 he was employed by the GLC. On its abolition, he started employment with Council on 3rd March 1986. He was employed as a Group Leader of a section known as Information Systems 3. He was involved in supporting the rates system and developing systems for the Directorate of Social and Public Services.(3) In January 1987 Mr Mwale, previously Head of Corporate Personnel, became acting Director of Management Services in place of a Mr Spale who left the Council's employment. It was agreed that a new management structure would be put in place in the Management Services Division. A key post, that of Head of Computing Services, was not filled. A Mr Frost was acting Head. Mr Mwale had no computer experience. The Tribunal found that he was an "autocratic manager". At a meeting on 3rd February 1987 with Mr D'Souza and his group, Mr Mwale castigated Mr D'Souza for sickness absences. Mr D'Souza had had 14 days off sick between September and December 1986 and three days off sick in January 1987. The relationship between Mr D'Souza and Mr Mwale was described by Mr D'Souza as one of "mutual contempt". Mr Mwale is of Afro-Caribbean origin.(4) On 11th February 1987 Mr Mwale decided that the post of Systems Development Manager should be filled. It was a responsible post. The job-holder would be the person to whom the seven group managers in the Information Systems Section would be answerable. On 11th February Mr Mwale telephoned Mr D'Souza, who was at home ill in bed, and informed him of the vacancy and that there would be an interview that afternoon. Mr D'Souza, who wished to apply for the post, asked Mr Mwale to postpone the interviews. Mr Frost, who was the only person who applied and was available for interview that afternoon, was appointed Systems Development Manager.(5) On 12th February 1987 Mr D'Souza wrote a letter to Mr Mwale complaining of his attitude at the meeting on 3rd February and of the precipitate telephone call on 11th February 1987. In his letter he did not suggest that he wished to have the post of Systems Development Manager. He also wrote at the same time to the Chief Executive (Mr George) complaining of Mr Mwale's threat to dismiss him. The letters referred to the Council's "Equal Opportunities policy and procedure", but did not make an allegation of racial discrimination. There was a meeting between Mr Mwale and Mr D'Souza on 18th February 1987. Mr D'Souza's representative was present, as was also a member of Personnel and an Equal Opportunities Officer.(6) On 5th March Mr Mwale circulated Mr D'Souza and five other managers, including Mr Frost, with notice of an opportunity to apply for the post of "Acting Head of Computer Services" pending the filling of the post following normal recruitment procedures. Four of the managers applied. On 11th March 1987 Mr D'Souza attended an interview for the post. There were four interviewers, including Mr Mwale. Mr Frost was the successful candidate. There was no significant difference in the experience or qualifications of Mr D'Souza and Mr Frost. In respect of this appointment Tribunal said -
"The Tribunal did not consider that there was any evidence from which they could draw an inference that the appointment of Mr Frost rather than the applicant had been in any way related to the race of the applicant."
(7) On 17th March 1987 Mr D'Souza wrote to the Chief Executive that there should be an impartial investigation concerning the appointment of Mr Frost. On 25th March 1987 Mr Frost notified most of the managers in the Computer Section of the vacancy as "Acting Systems Development Manager". Mr D'Souza did not apply for that post. He told the Tribunal that his reason for not applying was that he considered Mr Raje was more qualified that he was or than any of the other managers likely to apply for the post. (Mr Raje had also applied to he Head of Computer Services). Mr D'Souza also gave as a reason for not applying that he wished to test whether there was racial discrimination against Asians. The Industrial Tribunal confessed that they were unable to follow his reasons and their conclusion was that he was not interested in the post. A Mr Hart was appointed. The Tribunal concluded that there was no evidence to suggest that this was relevant to Mr D'Souza's allegations of racial discrimination. The Tribunal also noted that between January and mid-March 1987 Mr D'Souza had been off work ill for 20 days.(8) On 24th April 1987 Mr D'Souza made a formal request for a Stage 1 hearing under the grievance procedure. (He had not received a response from the Chief Executive to his memorandum of 17th March). He alleged racial discrimination in relation to the acting appointment. The Chief Executive did not respond. On that evidence alone, the Industrial Tribunal said it was not prepared to draw an inference of racial discrimination.(9) On 22nd April 1987 advertisements had been placed in various magazines for the post of Head of Computing Services and Systems Development Manager. On 14th May 1987 Mr D'Souza applied for both posts. In the meantime he had submitted to Mr Hart a reasoned request concerning staff training. Mr Hart replied on 28th April indicating that the requests were premature, both for himself and other staff and would need further discussion. On that point the Industrial Tribunal said they saw no reason to draw from the short memorandum the inference that Mr D'Souza's request for training was refused on grounds of race. Most of the members of his group were white. There was no evidence that his staff were faced with new computers or new programmes.(10) On 6th May 1987 the Chief Executive suggested to Mr D'Souza that the first stage of the grievance procedure should be discussed with Mr Hart. There was no documentary evidence to indicate that this suggestion was followed. The Tribunal added that in April and May Mr D'Souza was off work for a total of four days. The Personnel Officer requested Mr Frost to arrange for Mr D'Souza to see the District Community Physician. Mr D'Souza did not respond to the request, which the Industrial Tribunal considered reasonable, for permission for the Council Doctor to approach Mr D'Souza's GP to discuss his medical records. On 9th June 1987 Mr D'Souza refused a request that he consent to his GP providing the Council's Medical Adviser with information, though he did agree to attend the Council's Medical Adviser for an examination.(11) On 21st May Mr D'Souza put forward to Mr Mwale a list of persons from his group to go on courses.(12) Mr D'Souza was shortlisted for interview for the substantive post of Systems Development Manager. Sixteen were shortlisted, three of whom were Asians. He was also shortlisted for the post of Head of Computer Services. Eleven were shortlisted, four of whom were Asians, including Mr D'Souza.(13) On 22nd June Mr Mwale was appointed to the substantive post of Director of Management Services.(14) At interviews on 1st July three candidates were selected for final interview for the post of Systems Development Manager. Mr D'Souza was not selected. The Tribunal read the application forms of two who were selected. The reasons given for not selecting Mr D'Souza for a final interview were that he did not demonstrate an awareness of equal opportunities policy at the correct level, "his technical knowledge was confined to a very narrow appreciation and was inconsistent between in-house development and packaging. The Industrial Tribunal found that the second interview was consistent as to qualifications, both technical and managerial, as against what was shown on the application forms. The Tribunal did, however, express puzzlement at the comment both as respect Mr Raje, another applicant, and Mr D'Souza that they did not show equal opportunities awareness in a multi-racial environment.(15) On 6th July 1987 Mr D'Souza was informed that he was not selected for further interview. He cancelled an appointment to see the Council's Medical Adviser for 6th July. He cancelled a further appointment for 13th July. He did not attend an appointment made for 8th August. Correspondence continued with the Chief Executive about the two acting appointments. Mr D'Souza requested an investigation into the interviews for the position of Head of Computing. He alleged victimisation.(16) On 13th July interviews of Mr D'Souza and others shortlisted for the post of Systems Development Manager took place. The applicants consisted of five white candidates and two Asians, including Mr D'Souza. Three were referred for further interviews. They were all white. The Tribunal's conclusion on this was:
"There was no evidence, bearing in mind the various qualifications, experience and the comments made by the interviewing officers, from which the Tribunal could have inferred that non-inclusion of the applicant in the shortlist for final interview was by reason of his race."
The final interviews took place on 20th July 1987. The post was offered to Mr Hart. Final interviews were also held for the post of Head of Computer Services, but no appointment was made.(17) In July and August there was further correspondence between Mr D'Souza and the Chief Executive about arrangements for the hearing of his grievance. He made a further request for training programmes for senior managers.(18) In September, further medical information was sought from Mr D'Souza. By that time he had had 27 days absent. On 25th September the Council decided to start disciplinary action against Mr D'Souza. A hearing was fixed for 2nd October 1987. Mr D'Souza said he could not attend. There was further correspondence. The evidence showed that between August and December 1987 Mr D'Souza was absent for a period of 87 days. He was dismissed on 16th January 1990.The ultimate conclusion of the Tribunal is stated in paragraph 56 of the decision as follows:-
"The Tribunal are satisfied that all the evidence in this case points to there having been appalling mismanagement indeed failure of management by the respondents in the applicant's department during 1987. The mismanagement affected different members of staff in different says. It would appear that most of the realists left in disgust. There must be some who have remained for reasons known to themselves, a livelihood not being an irrelevant reason. The applicant appears to have used the respondents' equal opportunities policy as a vehicle to express his own quite legitimate misgivings. The Tribunal do not consider that there has however been any evidence upon which they could rely from which they could infer that any of the problems which affected the applicant during 1987 and of which he complained were in any way related to the fact that the applicant was of Asian origin."
The application was therefore dismissed.

Mr D'Souza's submissions

In his amended Notice of Appeal Mr D'Souza identified seven areas of complaint which he amplified in oral argument and asserted were grounds of law.(1) He contended that the Industrial Tribunal misdirected itself and was perverse in the amount of time allowed for the hearing. The Tribunal failed to conduct the proceedings fairly as between him and the Council. Counsel's freedom to conduct the proceedings to the best advantage of Mr D'Souza was interfered with by constant interruptions and directions from the outset of the hearing, together with misleading early indications of a favourable outcome for him. In consequence his chances of success were severely prejudiced by the Tribunal's procedural improprieties. An objective observer at the hearing would justifiably conclude that justice had not been done and had not been seen to be done. The Tribunal behaved in an arbitrary and capricious manner bordering on the oppressive. Mr D'Souza complained that the Tribunal had behaved perversely in allocating only one day for the hearing, whereas it had been previously listed for 15 days by the Chairman, Mrs Calvert QC. He argued that no reasonable Tribunal would allocate only one day for a hearing of the complexity and volume of detailed evidence involved in this case. He had 13 major heads of complaint. There were 700 pages of documents. Witness orders had been made in respect of five witnesses. The Tribunal had not properly discharged its legal duties. The procedure adopted made it impracticable for important witnesses to be called in support of his case. Open hostility was displayed towards counsel and Mr D'Souza. They were frequently interrupted and criticised. The Tribunal erred in law in giving the indication at an early state that they were willing to accept that there was racial discrimination when Mr D'Souza was not appointed in July 1987. The impression given on the first day by the Chairman was that it was an open and shut case and that the only matter to be decided was the quantum of damages. This was contrary to the ruling in Ellis v. Ministry of Defence [1985] ICR 257 that Industrial Tribunals should not give an indication of a pre-judgment of the outcome.(2) The Industrial Tribunal misdirected itself and erred in law in failing to consider properly relevant evidence that could be probative of the allegations of racial discrimination and victimisation by the Council and their employees against him. Similar fact evidence had been ignored. The Tribunal excluded consideration of evidence probative of the fact that other members of his racial group were subject to similar treatment. The Tribunal had not adequately considered his evidence about Mr Mwale's statements to him. That evidence was indicative of a stereotypical attitude on the part of Mr Mwale. It was logically probative of racial discrimination towards a stereotyped racial group. Unlawful discrimination could arise from stereotypical assumptions. Under this ground Mr D'Souza made many detailed points relating to promotion, training matters, grievance procedures, transfers and work allocation.(3) Mr D'Souza submitted that the Industrial Tribunal used arbitrary standards and inappropriate comparators when making comparisons contrary to the provisions of the Race Relations act 1976. The Tribunal had criticised the Council's equal opportunities policy and refused to accept that Mr D'Souza should be judged by the employment conditions that applied to Council employees. Many detailed points were made under this heading. The main one was that the Tribunal had used inappropriate comparators. He was able to demonstrate disparity of treatment on grounds of race, mentioning named individuals. There were insufficient explanations from the Council.(4) There were factual errors in the decision which, in aggregate, cast doubt on the validity on the conclusions reached by the Tribunal. These errors could have been avoided if he had been permitted to give evidence unrestricted by unreasonable interventions from the Tribunal and by the Tribunal examining him on these matters while he was giving evidence. Under this head he identified what he claimed were a number of factual errors in the decision.(5) The Tribunal failed properly to instruct itself on the burden of proof and had failed in its obligation to make adequate findings in respect of each of his allegations. Under this head he listed various points on which the Tribunal failed to make specific findings of fact.(6) The Tribunal misdirected itself in making a finding of appalling management on the part of the Council and treating that finding as an answer to all the complaints he had under the Race Relations Act. This was a pervasive "catch all" finding of a kind that no reasonable Tribunal would make, unless spelt out with particularity as to pleading and proof.(7) The Tribunal held that it was entitled to ignore parts of statutes with which they did not agree and in stating that they were only required to be guided by considerations of fairness and reasonable behaviour.Those were the main grounds under which Mr D'Souza made his submissions. In oral argument he made clear the strength of his feelings on all these matters. He said that he was the victim of bias and prejudice on the part of the Tribunal. He had not been allowed a hearing of sufficient length to present his case properly. The evidence adduced by him was sufficiently persuasive, if not compelling, to enable an unbiased Tribunal to find that he had been subjected to unlawful discrimination and victimisation. He referred to the total of six other applications at London (South) in five of which he had been successful. He emphasised that there was a real point of law in the alleged breach of the rules of natural justice in the conduct of the hearing. He made much of the point that the Council was not represented at the hearing. No evidence was called on its behalf but, contrary to what was stated in the decision, the written representations of the Council were in fact used as evidence by the Tribunal in coming to its decision. The decision was largely based on inferences drawn from documents which were in clear conflict with unchallenged oral evidence given by Mr D'Souza. The Tribunal failed to make it clear which parts of the documentary evidence were preferred to his oral evidence. It failed to make specific findings of fact. In the absence of cross-examination, his unchallenged oral evidence should have prevailed. He returned to the matter of similar fact evidence (eg, concerning Mr Raje), which had not been admitted. He repeated that the Tribunal had interfered with Counsel's presentation and prevented him from giving evidence. These were serious procedural irregularities. He did not have a full hearing. He made a specific point about contradictions contained in the Chairman's comments on his grounds of appeal. He repeated his objection to the finding of "appalling mismanagement" as a comprehensive way of defeating his claims of racial discrimination and victimisation. He gave us instances of what he claimed were inaccuracies, generalisations and omissions with which the decision was riddled. He made a particular point of the fact that his grievance concerning racial discrimination had never been heard before he was unfairly dismissed on 16th January 1990. He claimed that the disciplinary charges are still on his personal file and are impairing his ability obtain other employment. He repeated his grievance that he was denied training, whereas peer group managers were sent on many courses.In conclusion, Mr D'Souza summarised his complaints by saying that his hearing before the Industrial Tribunal was a travesty of justice. It had no intention of hearing all the evidence. It had confined a 15 day case to one day and as a result had misapprehended the facts of the case and failed to give an objective evaluation of all the relevant facts.This is only a summary of the many pages in the Notice of Appeal, the skeleton argument and an Affidavit, in which Mr D'Souza challenged the Tribunal's decision.

Conclusions

In considering Mr D'Souza's submissions we have taken account of the comments made by the Chairman on the Notice of Appeal. These comments were obtained in accordance with the usual practice of the Tribunal when allegations are made of procedural irregularities, breach of natural justice and bias. In her comments the Chairman stated at the outset that it was an exceptionally difficult case. It should have been simple and straightforward. The Council did not attend, but submitted lengthy written submissions and bundles of documents. As a result of the Council not attending the Tribunal initially approached the matter on the basis that Mr D'Souza had to prove his case. Difficulties arose in that the more evidence the Tribunal heard from Mr D'Souza, the more there was reference to documents and the clearer it became that his relationship with the Council had deteriorated not because of racial discrimination against him but because of the antagonism he displayed towards his managers.The Chairman agreed that the hearing had been adjourned for three days because the Tribunal had arranged to do other work for the next three days in the belief that the case would only last one day. The Tribunal considered numerous documents at length from which there emerged the picture of a running battle between him and the Council as to when he would attend disciplinary charges, whether he was sick, for how long he was sick, what were his grievances and so on. As to the conduct of the hearing, the Chairman admitted that there were times when it was necessary to point out to Mr D'Souza and his counsel that the Tribunal were having difficulty. It arose from the muddle from which the Tribunal were left and their anxiety to do justice for him. They therefore decided to reserve the matter and thoroughly consider it again so as to put into order all the matters raised. As to the allegation that matters were not specifically dealt with in the decision, the Chairman said that it did not follow that because not all the matters were referred to that they had not been considered. In the final analysis the Tribunal were required to decide upon whether there had been racial discrimination or not. The conclusion was that there had not been. The observations of the Chairman were confirmed by a letter from one of the lay members, Mr Malcolm Howe.Further comments were obtained from the Chairman on the Affidavit sworn by Mr D'Souza. Those comments deal with the allegations as to the length of the hearing and the conduct of the hearing. We have read those comments. We do not find it necessary in this judgment to set them all out for this reason. As mentioned at the outset of this judgment, Mr D'Souza can only succeed on this appeal if he can establish that there was an error of law in the decision of the Tribunal. That error of law may appear in the reasons given for the decision or may appear in the failure of the Tribunal to observe the rules of procedure. We spent a considerable time discussing the details of his complaints with Mr D'Souza and we have examined the many points which he made in the documents. At the end of the day, Mr D'Souza has failed to persuade us that there is any error of law in this decision or in the way it was reached. Having heard Mr D'Souza's evidence and examined the documents and the written representations of the Council, the Tribunal came to a conclusion of fact without making any erroneous self-direction as to the law. That conclusion of fact was that the less favourable treatment, which Mr D'Souza complained that he had suffered, was not on the ground of race. The Tribunal were entitled, having considered all the evidence, to come to the conclusion that he had failed to discharge the burden of proof on him to establish racial discrimination.As to the many complaints about the procedure, we are not satisfied that there has been any breach of the rules of natural justice or other procedural irregularities. It is important to bear in mind two matters: first, the Tribunal is the master of their own procedure. Its procedures are more informal than those of a court. It may often be necessary for a Tribunal to interrupt the presentation of a case in order to clarify matters. It is not necessary for a Tribunal, in giving its decision, to mention every point which has been raised or to deal with every fact or dispute which arisen. The second point we would like to emphasise is that the Tribunal was faced with a difficult case. It was not made any easier by the absence of representation from the Council to assist in the identification of the issues and the handling of the evidence. We are satisfied by the Chairman's comments on Mr D'Souza's allegations that the Tribunal well understood the essential complaints of discrimination made by Mr D'Souza, made findings of fact on the material matters and came to a conclusion which cannot be legally faulted on this appeal. For these reasons the appeal is dismissed.