Agbenyega v GEC Alsthom Distribution Switchgear Ltd [1995] UKEAT 949_93_0802

EAT
Agbenyega v GEC Alsthom Distribution Switchgear Ltd
[1995] UKEAT 949_93_0802 · 1995-02-08
MRS JUSTICE SMITH : This is an appeal from the decision of an Industrial Tribunal sitting at Manchester on 23 and 24 June and 20 August 1993. The Industrial Tribunal unanimously dismissed the complaint brought by the Appellant under the Race Discrimination Act 1976 . They upheld his complaint that he had been unfairly selected for redundancy by his employers, GEC Alsthom Distribution Switchgear Limited, the Respondents to this appeal. The Tribunal adjourned the question of remedy. The Appellant seeks to reverse the Tribunal's decision on race discrimination.The Tribunal found the following facts.The Appellant was 63 at the date of his dismissal in June 1992. He had been employed by the Respondent since May 1978 at their factory at Higher Openshaw, Greater Manchester, as an electrical and mechanical calibrator. His job title was that of quality control assistant in the inspection department. He has a Higher National Certificate in electrical engineering. He is black. He was born in Guyana and came to the United Kingdom in 1957.The Respondents are part of the GEC Alsthom Group. They manufacture a range of switchgear equipment at their Higher Openshaw factory. In September 1991 they decided that due to a decline in business they must reduce their manning levels. They determined to carry out a redundancy exercise in two phases. The first phase was achieved in late 1991 and the second during the first six months of 1992. The Appellant was selected for redundancy in the second phase.The essential feature of the selection process was an assessment based on five criteria, relating to such matters as job performance and flexibility. The same assessment was used for both phases of the redundancy exercise and was carried out during the autumn of 1991. The department in which the Appellant worked comprised quality control assistants and inspectors who were on a lower grade than the quality control assistants of whom the Appellant was one. The same criteria were applied to all men in the group whether they were inspectors or quality control assistants. The assessment was carried out by the quality control manager, Mr Wilkinson, and a chief inspector Mr Clarke. For the five criteria there was a possibility of receiving up to 5 points; thus the maximum was 25. The Appellant was marked at 14 points by both assessors. It is not necessary to set out in detail the criticisms of the manner of assessment and procedures which the Tribunal made which resulted in their finding that the Appellant had been unfairly selected for redundancy contrary to section 57 of The Employment Protection (Consolidation) Act 1978 . Suffice it to say that they came to the conclusion that his assessment had not been carried out fairly.The Appellant made complaints to the Industrial Tribunal under the Race Relations Act 1976 on several grounds. His Originating Application covered matters which went back as far as 1981. The Tribunal properly refused to hear such stale complaints holding that they were time barred. Two complaints remained for their consideration. The first was that the Appellant had been discriminated against in that he had been paid less than white men of similar experience within his department. The second was that his selection for redundancy was unfairly carried out and that the only explanation for the unfairness was that he had been treated differently on the ground of race. The Tribunal rejected both of those contentions.Before turning to deal with the two complaints in detail the Tribunal said this at paragraph 8 of their decision:
"The onus of establishing discrimination on the grounds of race is on the person who alleges it. This does not mean that the complainant has to establish discriminatory words or something equivalent used by the respondent's Managers because it is very unusual for such discriminatory language to be used to an employee. What it does mean is that the complainant must create a strong inference of racial discrimination which it is then for the respondent to rebut by other explanations."
That passage lies at the heart of the Appellant's submissions before this Appeal Tribunal and we shall return to it more than once.Mr Hay, who appears for the Appellant and whose submissions have won the admiration of this Tribunal, submits that the Tribunal have here set too high a standard of proof for the Appellant. He submits that the Tribunal have misread, misconstrued or misunderstood the guidelines in King v The Great Britain-China Centre [1991] IRLR 513 . In essence he submits that the Tribunal have wrongly required the Appellant to "create a strong inference of racial discrimination" before the Respondent is called upon to rebut the inference by way of explanation. The guidelines to which Mr Hay has referred us are to be found at page 518 of

Lord Justice Neill's judgment:

"From these several authorities it is possible, I think, to extract the following principles and guidance:
(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 the discrimination will not be ill-intentioned but merely based on an assumption "he or she would not have fitted in".We interpose at that stage to observe that the Tribunal in this case, in paragraph 8, have plainly had in mind the first and second of

Lord Justice Neill's guidelines. Neill LJ continued:

"(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. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.65(2)(b) of the 1976 Act 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 it in Noone , "almost common sense".(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. 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."Referring to the passage complained of by Mr Hay in paragraph 8, we do consider that there is force in his criticism of the Tribunal's use of the expression:
"must create a strong inference of racial discrimination"
. We consider that the Tribunal here have put a heavy burden upon this Appellant.Mr Grundy submits that there is no misunderstanding of the guidelines in King to be detected in this passage. He submits that the Tribunal were merely substituting the words "must create a strong inference of racial discrimination" for the concept that the Applicant must show that he has been differently treated and that there is in the case a difference of race. We find ourselves unable to accept that as an explanation of the words used by the Tribunal in paragraph 8. We shall, as we examine the decisions which they made, attempt to evaluate the extent to which their conclusions have been affected by the direction that they gave themselves in that crucial passage.Turning to the Tribunal's consideration of the complaint of discrimination on pay. At paragraph 12 of the decision they say this:
"...at the time of his dismissal it was not disputed that the applicant was being paid less than other quality control assistants with less experience than himself. The evidence was that he had complained to Mr Wilkinson or Mr Wilkinson's predecessor about this who had promised to look into it after agreeing there was a discrepancy but that the action promised was overtaken by the redundancy situation."
We interpose to say that the evidence from Mr Wilkinson was that the Appellant had raised the question of his pay having fallen behind others in July 1991, approximately three months before the redundancy exercise began. At paragraph 14 they continue:
"As regards the applicant's lower rate of pay the evidence was that he was overtaken by other quality control assistants and when he complained to Mr Wilkinson about that a promise was made that there did appear to be a discrepancy and it would be investigated but unfortunately the respondent's redundancy programme overtook events and nothing had been done by the time his employment came to an end. The Tribunal took the view that this again fell far short of racial discrimination..."
Mr Hay has submitted that in those passages, the Tribunal have made a finding of primary fact that this Appellant was treated differently from other quality control assistants in respect of pay. They have not made an express finding that he was black and they were white, but it is acknowledged that everybody was aware at the hearing that that was so.It does not appear, submits Mr Hay, that the Tribunal have given any consideration to the possibility that that difference could arise from race other than merely to assert that in their view it did not. They have failed to consider the existence or validity of any excuses or explanations which were advanced by the Respondents for that difference of treatment. In our judgment that criticism carries some force. The primary facts were there and one cannot see from the decision why race discrimination has been rejected. In our judgment the reason for this failure is probably that the Tribunal have misled themselves at paragraph 8 into imposing a higher standard of proof on the Appellant than they should. They have required him to raise a "strong inference of racial discrimination" before it would be necessary for them to look at the explanations offered. They have not considered the validity of the partial explanation that the Appellant's complaint was overtaken by events. Nor have they considered the absence of any explanation for the fact that the Appellant's pay had ever fallen behind.We consider that they have fallen into an error of law and that their decision cannot stand. We have asked ourselves what we ought to do in this situation. Mr Grundy submits that if we find there to have been any error of law, the matter must be sent back to a Tribunal for a fresh hearing. Mr Hay urges us to make our own decision. He accepts that in respect of this issue we cannot rely only upon the decision for the necessary findings of fact. However, we have the Chairman's Notes of the evidence given by the Respondents' witnesses. We think it would be undesirable that this matter should have to go back for hearing before a fresh Tribunal so long after the event. We consider that the issues were fairly and squarely put before the Tribunal. The necessary evidence is available to us and it does not appear that it was contentious. We must make a rather more detailed examination of it than the Tribunal have carried out, at least insofar as appears from their reasons.The position, as appears from the documents and the evidence, was that from the beginning of 1991 the Appellant's salary fell behind those of three white quality control assistants. They were Mr Morgan, Mr Gallimore and Mr Townsend. Until the end of 1990 the Appellant, Mr Gallimore and Mr Morgan had been on the same salary ever since the creation of the grade of quality control assistant. Mr Townsend had had a slightly different history in that he had previously worked at the Respondents' Trafford Park premises. He had been granted merit increases before his transfer to Higher Openshaw which resulted in him being on a higher rate of pay than anybody else in the department at the time that he joined that group in 1991. Thus until 1991 the Appellant could have had no criticism of his pay. However, it appears from a document at page 42 of our bundle, that as from 1 January 1991, the Appellant fell behind Mr Gallimore and Mr Morgan. It also appears that as from sometime in 1991, the precise date being uncertain, but certainly before the end of that year, two new people had joined the group of quality control assistants. They had been put immediately onto the same pay level as the Appellant. They too were white. Thus it was presented to the Tribunal below, that this Appellant was doubly disadvantaged. He earned less than the people with whom he was truly comparable, Mr Morgan and Mr Gallimore, and he earned only the same as people who had much less experience in the job than he did.It seems to us that both of those factors show different treatment. The Tribunal acknowledged the one; they did not expressly consider the other but we consider that both are made out. The difference in race is accepted. Accordingly we consider it appropriate to look for an explanation for the difference of treatment. Mr Wilkinson was asked in chief why it was that the Appellant's pay had fallen behind those men who were comparable to him, Mr Gallimore and Mr Morgan. He said that he thought the Appellant might have been overlooked. Then in cross-examination he suggested that the other two (Mr Gallimore and Mr Morgan) might have had a rise because their duties had been increased. He did not suggest that he knew that to be the case. No evidence was called about that. Mr Hay has submitted to us that his explanations were no more than guesswork. We consider that he is right.Mr Jones the Respondents' personnel officer was also called by the Respondents. He said frankly that he did not know about the pay structure and had no explanation for the difference.No explanation was offered as to why the two new quality control assistants had entered the group on the same grade as the Appellant. Mr Grundy sought to advance explanations by reference to a pay structure document which was before the Tribunal although not directly referred to them in their reasons. On further examination Mr Grundy virtually abandoned these possible explanations.We remind ourselves of the passage in North West Thames Regional Health Authority v Noone [1988] IRLR 195 to which reference has already been made. May LJ said this:
"In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an inadequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds."
We have come to the conclusion that the primary facts are clear in this case. There was a difference of treatment. We consider that the explanation in respect of the difference between the Appellant and Mr Gallimore and Mr Morgan was wholly unsatisfactory and that there was no explanation for the unjustified similarity of pay between the Appellant and the two new members of the group. We consider that we are driven to the inference that there was indeed racial discrimination in this case and we so find.Turning now to the Appellant's second complaint of racial discrimination, namely that he was discriminated against on racial grounds in the manner in which he was selected for redundancy. At paragraph 16 the Tribunal say this:
"As far as the complaint of racial discrimination is concerned this left only the selection of the applicant to be made redundant. The respondents' evidence (Mr Jones) was that the applicant had never complained as far as he was aware to any member of management that he was the subject of racial discrimination nor had he invoked the respondent's grievance procedure in relation thereto. The respondent operates an equal opportunities policy and although at the relevant date the applicant was the only person of ethnic origin working as a quality control assistant, the respondent had employed many persons of ethnic origin in the past. On this issue the applicant's evidence was that the marking he received on his assessments prior to redundancy were so ludicrous having regard to his skills and qualifications that they could only be explained by being as a result of his race. The Tribunal on the evidence could not accept this. It came to the conclusion that the selection of the applicant for redundancy was the result of other shortcomings on the part of the respondent dealt with later in this decision but not discrimination on the grounds of his race.
For the foregoing reasons the Tribunal came to the unanimous conclusion that any complaint of racial discrimination by the applicant fails."They then turn to deal with the complaint of unfair dismissal in detail. The complaint is made by Mr Hay for the Appellant that the Tribunal had closed the issue of racial discrimination, treating it as if it were in a separate compartment, before going on to make any findings of fact in respect of the selection for redundancy. We accept that it does appear that that is what they have done.Mr Grundy submits that although that is the format of their decision, we should not assume that they have divided their decision in that way. He points to the fact that they have expressly referred to the conclusions on unfair selection which they are about to set out. We consider that although it is undesirable for a Tribunal to separate their conclusions in this way, it is not necessarily fatal to the logic of their decision.We turn to consider the Tribunal's findings in respect of the selection for redundancy. At paragraph 20 they accept as unchallenged the evidence that the Appellant was a highly skilled, experienced electrical engineer, probably the most experienced the Respondent had. Also they find that he was capable of doing any job in the department, including mechanical testing and electrical calibration. They then set out in detail their criticisms of the manner of assessment. In particular they are critical of Mr Wilkinson's reliance upon a document described as a "performance chart" the provenance of which was uncertain but which, as the Tribunal found, contained important inaccuracies to the Appellant's detriment. The Tribunal found that Mr Wilkinson had relied upon this performance chart, paying no heed to whether it contained errors of fact. They were also critical of Mr Wilkinson's evidence in that they rejected his claim that when he made the assessment he was not even aware that it was for the purpose of redundancy. There was other evidence from the Respondents' own witnesses which contradicted that. They concluded that the selection criteria which were adequate, if properly applied, had not been applied fairly in the Appellant's case. They added that it was difficult to understand how he could have received such a low assessment in certain areas.We shall assume, in accordance with Mr Grundy's submission, that those factors were present to the Tribunal's mind at the time when they announced their decision on racial discrimination at the end of paragraph 16. We assume that they had already decided that the assessment was unfair, indeed so unfair as to be "hard to understand".It seems to us that that must amount to a finding of primary fact that this man had been treated differently from other men in the group. It is accepted that everybody in the group under consideration was white except for this Appellant. Yet nowhere do we find in this decision the Tribunal considering the possibility that the unfair assessment may have been based on race. We ask ourselves why they have not given consideration to that issue and we consider that it is because they have misled themselves at paragraph 8 of their decision and have set too high a standard of proof for the Appellant. They have expected him to raise a strong inference of racial discrimination before they look for an explanation for the different treatment.We conclude therefore, as in respect of the pay issue, that the Tribunal has misdirected itself and has fallen into an error of law. What ought we to do about it? Here again Mr Grundy submits although we have the power this is not a case in which we should examine the evidence and reach our own conclusions. Mr Hay invites us to do so, submitting as he does, that all the necessary findings of fact are available on the face of the decision.We consider that the findings of primary fact are clear. From our reading of the decision and the Notes of Evidence it is clear to us that no explanation was offered for the unfairness of this man's assessment. Indeed it was always denied that there ever had been any difference of treatment or any unfairness in the assessment. Mr Grundy submits that the Tribunal must be taken to have considered all the circumstances and have proposed to themselves, as it was not suggested by the Respondents, that the reason for this man's unfair assessment was incompetence by the Respondents. Such an argument was not advanced and was not considered expressly by the Tribunal. We are not prepared to speculate about what might have been in the Tribunal's mind; especially as we are not satisfied that the relevant issues were in their minds at all.We have therefore looked at the evidence. We bear in mind that this was a man with a high degree of skill and long experience; he was probably the most experienced electrical engineer in this group. We note that he held the higher grade of quality control assistant than many of the other men in the group under assessment. We do not regard that as very significant as we notice that the other quality control assistants were not at the top of the list in the assessments. Looking at the matter overall, we have been driven to the conclusion that, in the absence of any explanation for the Appellant's assessment, the proper inference to draw is that this was a case of race discrimination.The appeal is allowed and the case must now be remitted to the Industrial Tribunal for consideration of remedies under the Race Relations Act.