Kanekanian v Cardiff Institute Of Higher Education & Anor [1996] UKEAT 46_96_1712

EAT
Kanekanian v Cardiff Institute Of Higher Education & Anor
[1996] UKEAT 46_96_1712 · 1996-12-17
MR JUSTICE LINDSAY : We have before us an appeal by Dr A D Kanekanian in a racial discrimination claim that was dealt with by the Industrial Tribunal under the chairmanship of Mr A L James over a period of some four days between 4 September and 16 October and their extended reasons were promulgated on 7 February 1996. The Respondents below and here were the Cardiff Institute of Higher Education and Mr J M Lewis. This is a case where we have been provided with the notes of the Chairman of the evidence.Dr Kanekanian is an Iraqi national and a highly qualified food technologist. In 1989 he began to lecture at the University of Wales at Cardiff (UCW) as a member of "SCOTH", which is the School of Consumer Studies, Tourism and Hospitality Management. In 1994 discussions began between UCW Cardiff and "CIHE", that is the Respondent, Cardiff Institute of Higher Education, and the discussion was about the transfer of SCOTH to CIHE and in May 1994 that transfer was resolved upon and there was some unease felt by those at UCW Cardiff. It may be that they feared that there would be some possible diminution in academic esteem as between UCW Cardiff and CIHE.As part of the reorganization that was taking place it seemed for a time that there would be created a post-graduate school or post-graduate centre (PGC) and that possibility attracted Dr Kanekanian because it seemed it offered or would offer greater opportunities for research, which is what he particularly wished to increase. But not everyone at SCOTH was going to go to CIHE and not everyone who went from SCOTH to CIHE was going to go to the PGC. There was to be a selection process and some would go to the "FST" (the School of Food Science and Technology). There was going to be an FST, at the CIHE; ultimately Dr Kanekanian was earmarked to go to the FST and not to the post-graduate centre. In fact, the post-graduate centre was never set up. It was abandoned for extraneous reasons referable to the designated intended head of that PGC. He, in fact, elected to go elsewhere and when that happened this scheme was taken no further.The central part of Dr Kanekanian's complaint is that he was discriminated against on racial grounds when another person, Dr Peters, a white man, was selected for the PGC rather than he, Dr Kanekanian. There are other forms of racial discrimination that were in play and which we will have to deal with in more detail but, just painting the picture, so to speak, at this stage, it is said also that too high a burden in terms of teaching hours was put upon Dr Kanekanian, thus depriving him effectively of spending more time on research and consultancy. The more time one spends on teaching, the less one can spend on research and consultancy. Moreover, he claims that he was obliged to work a particular number of hours or had a figure for hours ascribed to him ahead of anyone else and at a time when no one else had had such an ascription. Another form of racial discrimination alleged is that he did not have made to him a promise of becoming a principal lecturer and being paid on the principal lecturer's scale, unlike Dr Peters and unlike a Dr Geen. Dr Geen achieved the principal lecturer grade and with it the principal lecturer scale. I will come in more detail to the nature of these particular complaints but that was, broadly speaking, how the matter stood before the Industrial Tribunal. I have indicated that the Industrial Tribunal heard the matter over some four days and witnesses were both called and recalled to give evidence to the Tribunal.As for the fact that Dr Kanekanian was posted to the FST rather than to the PGC, the Industrial Tribunal said:
"There were cogent reasons why the complainant was seen to have greater skills on the teaching side than on the research side"
They held that he, Dr Kanekanian:
"would be employed to the greater advantage of the Department in teaching than in full-time research."
and they concluded on that subject he, that is the person who made the decision:
"came to a conclusion which could not be faulted and which was in no way influenced by matters of race or ethnic origin. Mr Lewis [the second Respondent] acted on that advice."
That was advice that came from a Dr Griffiths, of whom we will hear more.That was their conclusion on the notion of appointing Dr Kanekanian to the FST rather than to the PGC.As to teaching hours, the Industrial Tribunal held that there had been some confusion on the subject. They held that the contractual hours that could, as a maximum, be required of an individual, were 500 hours per session, a session being an academic year. In fact, that is a mis-statement in the sense that, strictly speaking, the correct figure was 550 hours. There seems to have been an accidental error there in the decision of the Industrial Tribunal. They held that the number of hours actually to be worked were negotiable and that that had been stressed.As to Dr Kanekanian not becoming a principal lecturer or being promised the office of principal lecturer, it is clear Dr Geen did become one. His subject, though, was Latin and the Industrial Tribunal held that he was incomparable. What they held on that was this:
"The complainant was less favourably treated that Dr Geen but demonstrably that was not based on race. Dr Geen had twenty or more years in academic work in South Wales and his field differed from that of the complainant. He was concerned with PGCE not Food Technology. It cannot be seriously suggested that there was a comparison between Dr Geen and the complainant."
Dr Peters was a comparator in this field as well but, ultimately, both he and Dr Kanekanian were treated in similar respects in that both stayed in the grade of senior lecturer and on that subject, a comparison with Dr Peters, the Industrial Tribunal held this:
"Was he less favourably treated than Dr Peters? The answer is yes, in that at the material time, Dr Peters was told that he was to go to the PGC and the applicant was told that he would not go there but to the FST. Was there a difference in race? Clearly there was. The complainant is an Iraqi national; Dr Peters a UK national. Was the applicant treated less favourably on racial grounds? In our unanimous and considered opinion, the answer to that must be no; any differences in treatment was occasioned by the different academic standing of the two men."
The Industrial Tribunal referred to the evidence of Dr Griffiths, making the point that Dr Kanekanian's career best suited him for teaching.That explains the chief areas of discrimination alleged and dealt with before the Industrial Tribunal and, broadly speaking, the conclusions of the Industrial Tribunal on those points.Now I turn to the nature of the appeal, which has been argued on behalf of Dr Kanekanian by Mr McGlyne, who has the benefit of having appeared below, as, indeed, has Miss Rose for the Cardiff Institute of High Education. Mr McGlyne takes a number of points and in the first one he draws particular attention to the expression in paragraph 8 of the extended reasons for the Industrial Tribunal, speaking of Dr Peters and Dr Kanekanian, and the sentence that he criticises is this:
"Both men were by training Microbiologists. There was no room in research for two;"
One has to remember, to some extent, that the PGC never got established and so what would have happened precisely is something of a matter of speculation but, for all that, that sentence is undoubtedly wrong. It is mistaken. Dr Kanekanian is not a microbiologist, he is a food technologist. It might be that the two overlap but, at any rate, in this case they do not and there is no evidence that there was room only for one microbiologist. However, one has to ask, does that touch the central complaints made by Dr Kanekanian and the reaction of the Industrial Tribunal to those central complaints?The case was put that Dr Peters' strengths were in research and better suited him for the PGC. Correspondingly, Dr Kanekanian's particular strength - it seems that unlike Dr Peters he had more experience in relation to employment in the food industry - particularly suited him to the FST. It cannot be said that there was no evidence on those lines. Dr Kanekanian's own evidence made the point that Dr Peters was a microbiologist, that he was a food technologist, that Dr Peters had a substantially greater number of publications and that he, Dr Kanekanian, had had a spell in industry. Dr Peters' evidence included that his record of publications far exceeded Dr Kanekanian's and that he, Dr Kanekanian, was seen as a teacher whereas Dr Peters was seen as a researcher. Dr Lewis gave evidence that it was clear from Dr Kanekanian's curriculum vitae that the FST best suited him and Dr Lewis was impressed by Dr Kanekanian's experience in industry. Dr Lewis gave evidence that on the basis of the curriculum vitae he formed the view that Dr Kanekanian was better at teaching than on research. He was not dismissing his research qualities but was of the view that his industrial experience would be of value to CIHE. It was the view of Dr Lewis that putting Dr Kanekanian in the FST better suited the overall purposes of the faculty.Whether that evidence is to be accepted or not is exclusively a matter for the Industrial Tribunal. They heard that evidence; they saw the witnesses. There was, as I have mentioned, both the calling and the recalling of witnesses in order that findings of fact could be as thoroughly based as is possible. In that circumstance, it is difficult to see how a simple mistake about both men being by training microbiologists and there being no room in research for two, touches sufficiently upon the central point which was that Peters was basically a research man and Kanekanian basically a more practical and teaching man and that that was a decision at which the Industrial Tribunal could properly arrive. We do not see that particular sentence to which Mr McGlyne properly drew attention as giving rise to any error of law.Next, on the teaching-hours point, the contract, as we have indicated, was strictly for a maximum of 550 hours and the Industrial Tribunal was wrong to say 500 but it is hard to see this as a matter of racial discrimination. One would need much more evidence to convert it into that. The complaint seems not to be that Dr Kanekanian was required to work the maximum figure, because that was not the case. The maximum was 550 and 500 hours was initially mentioned by Dr Lewis, so that it would seem that Dr Lewis was moving in Dr Kanekanian's favour. Accordingly, the complaint is not put in that way but rather it is said, as we have understood it, that Dr Kanekanian had a requirement of hours laid upon him before anyone else had any similar or any requirement of hours laid upon them and that that, in itself, is not only discriminatory but discriminatory, it seems, on racial grounds.The whole area here is one fraught with difficulties for Dr Kanekanian. A major feature of the complaint below went back to a conversation that he had on the telephone with Dr Lewis, the second Respondent, on 18 November 1994. Rightly, in our view, the Industrial Tribunal took the view that in a better regulated world that conversation would never have happened or, at any rate, would not have taken the course that it did but one does not always find oneself able to live in that more perfect world and the Industrial Tribunal went into some detail as to what had happened in that conversation. Dr Kanekanian had said that in that conversation Dr Lewis had spoken to him with a snarl in his voice but the evidence was gone into on that subject and the Industrial Tribunal held that that was not the case. They said that that was:

"a description which we find impossible to conceive or accept."

Dr Kanekanian had said that there was a mention of a "real problem" in such a way that Dr Lewis was, in effect, threatening Dr Kanekanian in the course of the conversation but, again, on that the Industrial Tribunal found against Dr Kanekanian. They said that Dr Lewis did use the words "real problem" but they were not stressed as Dr Kanekanian would wish the Industrial Tribunal to believe, nor said with a snarl in his voice:
"What Mr Lewis was seeking to explain was that if the complainant, or indeed anyone else, failed to measure up to the required standard on appraisal, then he, Mr Lewis, would have a real problem in running his Faculty. This is a classic example of how easily misunderstandings can arise in the course of a telephone conversation where one side has a fancied grievance and is determined to pursue it, and the other is busy, has been interrupted in the course of an important meeting, and is becoming irritable with the repetitive nature of the conversation."
That some threat was inherent in the words "a real problem" was also not found by the Industrial Tribunal.Dr Kanekanian said that his name had been "dismissed", that Dr Lewis had said that Kanekanian's name had come up and was dismissed and, again, the Industrial Tribunal did not accept that. What they said was this:
"Mr Lewis denied the use of the word 'dismissed' He claimed before this tribunal that the word used was 'discussed' not 'dismissed'. We accept that explanation."
Importantly, on the hours subject, which came up, of course, in this conversation, the Industrial Tribunal held:
"In the course of that conversation Mr Lewis undoubtedly referred to 550 hours [that looks to be a possible mistake or even a certain mistake as the figure seems to have been 500 hours but, leaving that aside, going on] but we are satisfied he also stressed that the hours were negotiable."
Indeed, long before the hearing before the Industrial Tribunal, Dr Kanekanian had been told something to that effect because we have before us, as had the Industrial Tribunal, a letter written by Derek Winslow, chief executive, to Dr Smith of UCW Cardiff that made the point that the actual teaching load would be determined against the criteria mentioned and that it would be for Dr Kanekanian to propose research and consultancy activities which could be off-set against teaching. The curiosity is that ultimately, the hours being negotiable, they were negotiated and that, in the out-turn, when they were negotiated, the only comparator, Dr Peters, ended up being required to do more hours than Dr Kanekanian. Dr Kanekanian is in a difficulty because much of his assertion as to the conversation which surrounded the talk of the hours was disbelieved and, it seems to us, there is no sting left in his complaint against Mr Lewis on this ground. The hours were negotiable and that was understood from the conversation onwards and, in the out-turn, he did better than his only comparator.The next head of complaint that Dr Kanekanian pursues before us is that the Industrial Tribunal attributed far too much weight to the views of Dr Griffiths. What they said is this:
"The tribunal is greatly indebted to Dr C J Griffiths, Dean of Academic Affairs with CIHE. It is not necessary to review his evidence in detail; he was the person who having considered the CV's of the transferees from UCW Cardiff to CIHE and who recommended that the complainant should go to FST and would be employed to the greater advantage of the Department in teaching than in full-time research. He explained the method of evaluating published work ..."
and they then went into more detail.As I have mentioned earlier, Dr Griffiths came to a conclusion which the Industrial Tribunal held could not be faulted and which, they held, was in no way influenced by matters of race or ethnic origin and in their last paragraph the Industrial Tribunal said:
"The evidence of Dr Griffiths is overwhelming. He in his judgment decided that Dr Peters' research record was superior to that of the complainant, and that the complainant's career best suited him for teaching. A judgment which was not in any way based on race."
The allegation is that Dr Griffiths claimed to have come to his view in November 1994 that Dr Peters' work was superior to Dr Kanekanian's work on the basis of a list of publications, which included a list by Dr Peters of his works, which list included, as if then published, a work referred to as the "Binary" publication. In fact, the binary publication was not published until early 1995. But Dr Griffiths did not say that he had nothing in mind but the list of publications, so far as concerns the work of Dr Peters. He made his assessment in November 1994. He cannot have seen the Binary publication at that stage because it was not then published but there was a typing error in the list of publications which Dr Peters produced, which suggested that the Binary publication had been published in 1994 whereas truly it was published only in 1995.Plainly, there was here material for a cross-examination of Dr Griffiths but this point about the mistaken date and the true date of the Binary publication did not come out until after Dr Griffiths had finished his evidence. It must be remembered that Dr Griffiths had not said that the list of published works provided by Dr Peters was the only source of information he had on Dr Peters' publications because they had conversed over a period and it was said that Dr Griffiths did have knowledge of what was "in the pipeline". There had been regular discussions. Even so, this new point did provided a subject of possible cross-examination of Dr Griffiths. Was he lying? What would have been his conclusion of the relative merits of the two candidates or of the relative suitabilities of the two candidates if the Binary paper had been excised from his thoughts (assuming it had otherwise been in them). The Respondents did not recall Dr Griffiths, they presumably thought it was not necessary. Dr Peters was recalled and it was only on his recall that this point about the mistaken date came out, so it is quite plain that the Industrial Tribunal did not object in principle to the recall of witnesses but it seems that the Appellant's advisers did not ask for Dr Griffiths to be recalled and it is quite impossible, it seems to us, in the absence of his recall, to determine what his evidence would have been or to devalue the evidence that he did give by supposing that he had no answer to the points that could be put to him. It was for the Industrial Tribunal to evaluate the evidence which was put in front of it, not the evidence that was not put in front of it. It was impressed by Dr Griffiths. It is not the case that Dr Griffiths had been saying that he personally had read the Binary paper either at all or in November 1994. That, of course, would have been a true hostage to fortune. He was doing his best to recollect what the comparative written work body was, both of Dr Kanekanian and of Dr Peters and was given a list which gave the wrong date for the date of the Binary publication.The mistake that seems to have been made here by no means establishes that Dr Griffiths was telling an untruth. It by no means establishes any bias in him against Dr Kanekanian, still less any bias against Dr Kanekanian on racial grounds. It does not even prove that his assessment would have been different if the Binary paper had been left out. In the absence of a re-cross-examination of Dr Griffiths on this point, having the point fairly put to him, we cannot say that the evaluation by the Industrial Tribunal of Dr Griffiths' evidence ought to be displaced by speculation on these grounds.We have had handed in to us, against objection, but have looked at de bene esse, a series of sheets of paper which, when explained to us, transpire to be a submission made by RAE (Research Assessment Exercise) in 1996 to the Council that is responsible for assessing the value of scientific work with a view to distributing funding. University bodies up and down the country make returns to the RAE, hoping to impress them sufficiently to retain or increase funding and they describe in the course of these returns work which they claim is of a standard sufficient to impress the RAE and in it, in this sheet in 1996, one sees four returns in which it is claimed, for the purposes of returns to the RAE, that Dr Kanekanian has submitted learned papers of particular academic levels. The level is measured by reference to letters of the alphabet, A to E, (A being the best level) and, speaking of papers in 1994, the return by CIHE for this purpose shows three papers of Dr Kanekanian, two marked letter "D" and one marked letter "C". Mr McGlyne submits that this is new evidence that should be admitted because it was not available at the time and which puts the lie, I think it would be said, to the view of the CIHE as put to the Industrial Tribunal earlier that there was only one paper of Dr Kanekanian's in 1994 that was of RAE quality. In fact, the comparison is not quite fair because one has to recognize that the return by the CIHE to the RAE is likely to be more in the nature of a claim than a nature necessarily found and established attributed level of quality. They are seeking in their return to impress the RAE and it is perfectly consistent to claim that there have been three 1994 papers of RAE quality in that claim and yet, at heart, to feel that only one of them was truly up to that quality. Mr McGlyne, I think, would see that as swinging the lead and so it may be but, even in academic circles (some would say, especially in academic circles) the lead no doubt is from time to time swung. I do not see that even if we were to admit this late evidence, it would sufficiently disturb the findings of the Industrial Tribunal or give rise to any point of law.The next complaint that is mounted on behalf of Dr Kanekanian is relative to the appointment of Dr Geen as principal lecturer in grade. The Industrial Tribunal was wrong to find that there was only one principal lecturership open at the time. They were confusing what was open to the faculty and what was open to the Institute as a whole and Dr Geen was a member of a different faculty altogether. To say that there was only one principal lecturership open at the time was mistaken. But the point about Dr Geen is that he was quite incomparable with Dr Kanekanian. Dr Kanekanian is a food technologist, Dr Geen a Latinist. I have already read the passage from paragraph 11 of the Industrial Tribunal when they concluded:
"It cannot be seriously suggested that there was a comparison between Dr Geen and the complainant."
In the absence of comparability between the two, what happened to Dr Geen is almost totally irrelevant. No one else but Dr Geen was appointed to the level of principal lecturer in the arrangements that were made at the time and so one has a position that only one person is selected as a comparator, Dr Geen. He is not comparable. He was the only person who went to the principal lecturer grade at the time and so the only person who benefitted was incomparable. Accordingly, there is nothing that Dr Kanekanian can make of this issue by way of an error or point of law. There was, it seems, some evidence that Dr Geen's elevation was only a matter of mistake, which would even further reduce Dr Kanekanian's position as against Dr Geen because if Dr Geen was a beneficiary only of an error, rather than of some discretion exercised in his favour or as a result of some discretion exercised against Dr Kanekanian there is even less in the point.The next head of complaint raised by Dr Kanekanian is in the letter of offer in which Dr Peters was offered a post at the PGC, whereas Dr Kanekanian was required to go to the FST. A letter on 8 November 1994 was sent to each of them. Dr Peters was offered the PGC post, Dr Kanekanian was offered the FST post. As I have indicated, the PGC eventually came to nothing. The Industrial Tribunal went into this subject. I have touched on the passage in paragraph 11 already, but I will read it again:
"Was he [Dr Kanekanian] less favourably treated than Dr Peters? The answer is yes, in that at the material time, Dr Peters was told that he was to go to the PGC and the applicant was told that he would not go there but to the FST. Was there a difference in race? Clearly there was."
I have read the previous passage about Dr Kanekanian being an Iraqi national and so on but that the difference in treatment was occasioned by the difference in academic standing between the two men.Dr Kanekanian before us particularly complains of the opening sentence in paragraph 6 of the Industrial Tribunal's conclusions that says:
"The letter of 8 November 1994 is in our view innocuous. It appears to be a standard letter sent to all members of staff at SCOTH who were affected by the transfer to CIHE."
and criticism is particularly made of the adjective "innocuous". But the point remains that the microbiologist was preferred for matters of research, Dr Kanekanian was preferred for the FST and there was reason for that which was nothing to do with race for the preference in each case. The word "innocuous" in our view might not be the most appropriate adjective to have used but there is nothing in the complaint in the sense that the Industrial Tribunal was perfectly aware of the nature of the complaint made to them. They knew that a letter of offer could be prejudicial or discriminatory but in this particular case they saw it as not one that embodied that harm and, in that sense, it was innocuous. We do not find anything in this particular complaint.There is a slightly more technical complaint raised by Dr Kanekanian that Dr Geen was taken to be a comparator as a matter of grading and Dr Peters only for a matter of scale of pay and that the Industrial Tribunal confused the two. Tied in, perhaps, with this is the distinction between Dr Kanekanian's name being "dismissed" as he would have it, or its being "discussed" as the Industrial Tribunal eventually held. But is there anything in this point because whether it is a comparison for grade or a comparison for scale, the point remains that Dr Geen was, on the evidence, regarded as incomparable so far as the Industrial Tribunal saw the matter. He was a man of quite different academic qualifications and quite difference academic purposes and Dr Peters was preferred for the PGC on the basis of his academic research standing. So far as concerns scales of pay, ultimately Dr Peters and Dr Kanekanian were treated in an identical way. Their contracts, which have been shown to us, were, in fact, word for word the same on this subject. Both Dr Kanekanian and Dr Peters were assimilated (which was the word used in relation to the transfers from one academic body to another) in a similar way, so that here we had one chosen comparator who was incomparable and a second chosen comparator who was treated the same.The Industrial Tribunal held that Dr Geen was appointed to a principal lecturership with a concurrent increase in salary; the complainant was not, but neither was his other comparator, Dr Peters. It is hard not to be sympathetic to the view that some confusion between comparison with grade and comparison with scale is an easy enough confusion to make and, indeed, in the further and better particulars that have been read to us it would seem that the separation between comparison of scale and comparison of grade was not at all clearly drawn. But, for all that, we have heard that complaint and find nothing in it.Then the complaint was made in relation to the tension, as Mr McGlyne would have it, arising out of the Industrial Tribunal to s.47(10) of the Race Relations Act, which reads as follows:
"A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings; but in any proceedings under this Act before an industrial tribunal [...] any code of practice issued under this section shall be admissible in evidence, and if any provision of such a code appears to the tribunal [...] to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."
and Mr McGlyne rightly draws attention to the mandatory "shall" in that last passage.No complete code was put before the Industrial Tribunal but there was an appendix 1 that was so put. One page was put in evidence and attention was drawn by the Mr McGlyne before the Industrial Tribunal to the provisions of that sheet of paper. Can it be said, though, that the Industrial Tribunal has failed sufficiently to pay attention to the provisions of the code? The Industrial Tribunal does not specifically say that it had the passages of the code in mind but one cannot jump from that to an argument that they did not have it in mind and here Miss Rose, for the Respondent, has drawn our attention to the observations of Lord Denning, Master of the Rolls and, more particularly, of Lord Russell of Killowen in the Retarded Children's Aid Society Ltd v Day [1978] ICR 437 at 444 . Lord Russell says at 444D:
"I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine tooth comb for some point of law."
and the passage was later endorsed by Lord Denning, particularly drawing attention to Lord Russell's citation in Hollister v National Farmers' Union [1979] ICR 542 at 553B . One cannot assume from the fact that the code was not specifically mentioned that it was not in mind. In fact the Tribunal itself had raised questions relative to the code. The position there, which we do not need to set out in any detail, was that the computer that CIHE ran did not give ethnic breakdowns of all staff or, perhaps, of any staff and that it would be laborious to get that information and, speaking of the computer, the Chairman made some reference such as that one could not get out what was not put in and one would guess from the context that that was said in a critical way. It cannot, therefore, be said that the Tribunal assuredly did not have in mind the provisions of the code that were drawn to their attention and, that being so, it seems to us that nothing can be developed out of the code point.The next point is similar and it relates to the questionnaire procedure of s.65(2)(b) of the 1976 Act, which provides:
"If it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
If a party wishes to rely on that section before an industrial tribunal, it seems right that the other side should be clearly warned that that is to be the case and warned from as early a stage as is practicable. If a Respondent has any aspirations to being a responsible employer, he is likely to wish thoroughly to contest an accusation that there had been deliberate omissions without reasonable excuse or an omission to reply or evasion or equivocation in his replies. These are serious allegations which threaten an employer's reputation and it is only fair that such an accusation should be seen coming, so that it can be properly met and, so far as s.65(2)(b) entitles an inference to be drawn, it is fair that the Respondent should know what is the inference which it is intended to draw. If, for example, the intended inference is possible on other grounds, that might render an examination of the questionnaire unnecessary and, equally, if the inference intended to be drawn can be rebutted by other facts, it is fair that the Respondent should know what the inference is said to be, so that he can adduce evidence to rebut it. Unless one takes steps of this kind then the Industrial Tribunal is not likely to be listening particularly with s.65(2)(b) in mind. Equally, the accused will not know what it is against which he is having to defend himself and witnesses will not know what precisely is being said about their conduct. Are they evasive, are they equivocal, have they failed to answer, had they reasonable excuse, and so on? Ex post facto reasoning comparing the answers in a questionnaire with the answers later given in or submissions made in the Industrial Tribunal seem to me not properly to be likely to satisfy a Tribunal. There are likely to be months and, in this case, there were certainly months, between the answers given to the questionnaire and the answers given and submissions made in the hearings in the Industrial Tribunal. A statement that is full and honest and without equivocation or evasion in, let us say, March, might not be an accurate answer as things seem when the case has been more fully developed in September or October.The Appellant here claims to have raised an argument before the Industrial Tribunal as to s.65(2)(b), going through the questionnaire before the Industrial Tribunal. Undoubtedly, the points were made to the Industrial Tribunal but one is left with the same point that was made in relation to the Race Relations code of practice. One cannot jump, and authority shows one cannot jump, from the conclusion that a matter is not mentioned by an industrial tribunal to the conclusion that it was not even in mind. Even now, precisely what inference is properly to be drawn according, to Dr Kanekanian, from his argument on s.65(2)(b) is not made clear. There is nothing here, it seems to us, sufficient to shift the Industrial Tribunal's conclusion from the strong passage that one sees at the very end of the case, as Miss Rose rightly draws attention to. This is not a case where the Industrial Tribunal merely held that on balance the allegation of racial discrimination was not proved; in that sort of context one can imagine that a careful examination of the questionnaire and the code of practice and points made thereon might just tip the balance one way or another. But here the Industrial Tribunal goes further. They say in the concluding passage of the extended reasons:
"The respondents have given entirely satisfactory explanations as to why the decisions taken affecting the complainant were taken. They satisfy us that racial prejudice played no part whatsoever in those decisions."
We have now dealt at greater or less length with all the particular complaints that have been raised on Dr Kanekanian's part. We have had cited to us the familiar authorities on not going through industrial tribunal decisions with a fine tooth-comb. That, we accept, is the right approach. One should not seek minutely to examine the decisions, rather one should take them in a broad way and say, "Can the Appellant see why he has failed; can he see why it is that he did not succeed below and are the broad grounds of the decision free of error of law?" On that approach we do not see here any error of law that has been disclosed to us in the course of the argument on behalf of the Appellant. The Industrial Tribunal directed itself on law, as Miss Rose draws to our attention, correctly. They said in their paragraph 9:
"Our task as a tribunal is to look at the evidence as a whole and to decide whether the complainant has made out his case. He has to show that it is more probable than not that he was less favourably treated than other persons, namely Dr Geen and Dr Peters were treated on racial grounds.
We have to remember that direct evidence of discrimination on this ground is rarely available. So the evidence of discrimination will normally consist of inferences to be drawn from the primary facts."They then begin to enquire into those primary facts and a little later in paragraph 10 they say:
"We can now turn to the direct or circumstantial evidence of discrimination. First has the complainant been 'less favourably treated' than other persons? In making this comparison we can only compare 'like with like', that is 'the relevant circumstances in the one case' must be 'the same, or not materially different, in the other'."
Those are correct directions which the Industrial Tribunal gave to themselves. We see no error of law in their deliberations. Accordingly, we dismiss the appeal.