Palayiwa v Thames Valley Police [1996] UKEAT 761_94_2201

EAT
Palayiwa v Thames Valley Police
[1996] UKEAT 761_94_2201 · 1996-01-22
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal by Mr Palayiwa against the decision of the Industrial Tribunal, the Chairman sitting alone at Reading on 23 February 1994 and again on 21 March and 25 April 1994. Extended reasons for the decision that Mr Palayiwa's claim for race discrimination should be dismissed, were sent to the parties on 20 July 1994. Mr Palayiwa served a notice of appeal on 29 July 1994.The case was listed for a preliminary hearing on 24 October 1994 and resulted in an order that the appeal be allowed to proceed to a full hearing. An order was made for the production of the Chairman's notes of evidence. The preliminary hearing was an ex parte hearing at which Mr Palayiwa appeared in person. The appeal was due to be heard on 19 June 1995, but was adjourned in the light of submissions by Mr Palayiwa in a letter to the Tribunal on the morning of 19 June. The letter said that he wished to be present at the hearing, but was unable to. He still had not received the complete paginated bundle. It would not be helpful for him to be given that at the hearing. He needed a reasonable time between receiving the bundle and the hearing to read it and familiarize himself. He had also agreed to do some job interviews for his new employers. That required him to be present at interviews on that day.That hearing was attended by Mrs Hill, the solicitor for the Thames Valley Police, the Respondents to this appeal. After consideration of the circumstances we decided that we could not proceed. We adjourned the hearing to a date to be fixed and relisted for hearing before the Tribunal constituted as at 19 June.The hearing was re-fixed for today. Unfortunately, for different reasons, Mr Palayiwa has been unable to attend to argue his appeal.On 12 January Mrs Palayiwa sent, on behalf of her husband, a typed 16-page appeal submission with enclosed bundles, explaining that Mr Palayiwa would, unfortunately, be unable to attend, as he has had to travel overseas at short notice. The overseas trip is in connection with his work. But for that, he would have wished to be present to argue his appeal. The letter states that Mr Palayiwa was unemployed until January 1995. His apologies are sent.Just before the hearing this morning we received a fax from Mr Palayiwa in which he implores us not to interpret his inability to attend as indicating any disrespect for this Tribunal. The only reason he is not able to be here is that he has a pressing and important commitment overseas in connection with his new job as a conflict resolution consultant. He has enclosed with his fax an interesting photocopied article referring to the activities of a London-based non-governmental organization called International Alert. Mr Palayiwa points out the important work they do in conflict prevention and resolution and his involvement in it. We accept Mr Palayiwa's apologies for not being present today. We fully understand the reasons. He has helpfully sent, in substitution for his own oral presentation, a full and carefully reasoned written submission in support of his appeal.Mrs Hill has appeared for the Thames Valley Police.In order to decide whether there is an error of law on this appeal, it is necessary to examine the facts found by the Chairman of the Tribunal in its decision, the legal principles which he applied and the reasoning by which he came to the decision that the complaint of racial discrimination failed.Before we go into the details of that we should mention one procedural matter which has been of some concern to us, though it is not a point raised by either party. In our experience (and Mrs Hill confirmed it in a statement about her own experience of Industrial Tribunals) it is unusual for a complaint of this kind, a complaint of racial discrimination against a public authority, such as the Police Force, to be heard by anyone other than a full Tribunal of a Chairman and two lay Members. We have never encountered such a case being heard by the Chairman alone. We make it clear that we do not criticise the decision in this case for the hearing to take place before the Chairman alone. Under the powers, enhanced by recent amendments, a Tribunal Chairman can hear proceedings alone where, as in this case, the parties have consented. But it is important to note that, even though the parties may consent to such a course, the Chairman has a discretion to decide that the case should nevertheless be heard by a full Tribunal. In exercising that discretion he should have regard to various criteria, including the likelihood of a dispute arising on the facts which make it desirable for it to be heard by a full Tribunal and to the likelihood of an issue of law arising which would make it desirable for the hearing to be before a Chairman alone.In our view it is desirable in general that complaints of racial discrimination against a public authority should be heard by a full Tribunal rather than a Chairman alone. This is no reflection on the ability of the Chairman alone to deal with the facts and the law. But these are often high-profile cases. They require the contribution of lay Members to a decision on the complaint.There has never been any complaint by Mr Palayiwa, in his submissions to the Industrial Tribunal or to this Tribunal, about the way in which the Chairman alone handled the case, other than that he made an error of law or more than one error of law, in the course of reaching his decision. There was no criticism of the procedure before the Industrial Tribunal, though there was criticism of the procedures of the Police, both in relation to the selection of applicants for the job of an Equal Opportunities Officer and in relation to the way in which they handled certain aspects of the proceedings against them.The complaint arises out of the selection of a person to fill a new post of a full-time Equal Opportunities Officer. In the Spring of 1993 the Thames Valley Police decided to create such a post. Mr Palayiwa's complaint arose from his failure to be appointed to the post.Mr Palayiwa was, at the relevant time, 42 years' old. He is a black African, impressively qualified academically. He has three degrees, one from the University of Rhodesia, one from the University of London and an MA in Law from Oxford University. In addition, he is a barrister who has done a pupillage in Chambers. He worked from 1984, until he was made redundant in 1992, for the London Borough of Lambeth, first as a Race Relations Adviser in Town Planning and later as a Principal Race Relations Adviser. He had eight years involvement in local government at the highest level and he had wide experience of Equal Opportunity Programmes.He did not get the job. He was short-listed in a list of 10 candidates. Seven withdrew. Three candidates were left. The two strong contenders of the three were Mr Palayiwa and the candidate who was ultimately successful, Mrs Alison Scott. The selection procedure took place over two days, 6 and 7 May 1993, at Police premises. The selection procedure consisted of a number of tests. Each member of the panel used independently a grid assessment, assessing the performance of the candidate. The tests consisted of written appreciations, psychometric tests, aptitude tests, presentations, group discussion and letter drafting.In an important paragraph in the full reasons, the Chairman said this:
"A number of references are made in the statements of the respondents' witnesses to be `fitting in' with `the Police culture'. I have noted that the respondents' witnesses never shirked from explaining exactly what they meant by that view and language. It is of course a view and language that can have great significance in cases such as these. Assistant Chief Constable Dunn ..."
(He was an important witness. He was the Assistant Chief Constable who took the initiative for creating the position of an Equal Opportunities Officer.) He gave evidence in chief, explaining:
"what he was looking for. He said `I was looking for someone who had some experience and knowledge of equal opportunities and someone who would fit in and be a good team player and have good inter-personal skills. Being a team player is important as there were a number of changes on the horizon. There was a merger of Police and civilian sections. They were small departments with a small number of persons. They all have to work together. Training by an Equal Opportunities Officer would involve selling equal opportunities to the work force. We did not want someone who was seen to sit in an ivory tower issuing dictats but would get out on the ground. There was no individual support staff and the successful applicant would have to use the facilities of the personnel staff'. The thrust of the respondents' evidence was that Police culture was hierarchical and that the Equal Opportunities Office would have to be able to use a combination of intelligence, enthusiasm, sensitivity and sympathy from the top to the bottom, using those qualities which were felt to be most appropriate to whichever level of the Police force culture was the subject of any equal opportunities campaign. In short, the successful applicant would have to be able to be accepted and be credible with all strata of the police force, from those who were intelligent, sensitive and progressive to those less gifted in such characteristics."
In the following paragraph the Chairman explained that he accepted that evidence from the Police witnesses. He said:
"I think that that was a genuine requirement and I accept that it was an essential attribute of any individual who would be able to succeed in the delicate task of advancing the cause of equal opportunities in an organisation which had been recognised by these officers as in need of progress in the area of equal opportunities."
That was the evidence of the Police. It was accepted. As explained by Mrs Hill, that evidence was given first, even though the Police were Respondents, because statements had been prepared and submitted. There was no objection raised by Mr Palayiwa to that evidence being given to the Tribunal before it heard his evidence.Having made that finding of fact, the Chairman went on to consider in detail the assessment process by the panel on the first and second day of the selection process. He commented on the views formed by various people involved, as members of the panel, about the qualities of Mr Palayiwa and about those of Mrs Scott, who was successful. Mrs Scott was white, of Scottish origin, with a pass degree in English literature from the University of Edinburgh and she had a commission in the Royal Air Force, where she qualified as an instructor. It is important to note that she had obtained an IPM certificate from Plymouth Further College of Education and an IPM professional qualification from a NALGO correspondence course. She was a Member of the Institute of Personnel Management and a member of the Institute of Training Development. Her prior employment was with the Scout Association in which her main responsibilities included policy development and functional management.After setting out the details of the evidence about the two-day selection process and the comments on the two principal candidates, the Chairman said at paragraph 25:
"Mrs Scott satisfied the respondent that she had the appropriate skills and abilities.
26. Each assessor set out their grades on an individual grid independently and thereafter jointly came to an agreed grading."He referred to the evidence given by Mr Palayiwa about his application. He was aware that the burden of proof was on him. He gave evidence of matters that he was concerned about as a result of what happened in the interviewing and selection procedure. At paragraph 30, the Chairman said this:
"Mr Palayiwa then gave, without prompting, what I find to be significant evidence. He said `Mr Lambert (Mr Lambert was a member of the panel) asked if I thought I could do the job. I said I could do it with one hand tied behind my back. He said `don't you think that is arrogant?' I said no and I explained my previous experience as Chief officer in a large local authority. He cut me off and said `do you think these highflying qualities are relevant or any use?' I had in fact never mentioned my qualification during the whole of the two days. He then asked `how do you think you can do the job?' I said `the proof of the pudding is in the eating'."
After a further summary of the evidence about Mr Palayiwa's experiences in the interview, the Chairman referred to specific complaints by Mr Palayiwa. He submitted to the Chairman that Mrs Scott had inferior qualifications and less experience than himself in the relevant field. He said that the Assistant Chief Constable, Mr Dunn, was biased against the selection, because he had not read the background papers pertinent to himself. If he had done he would have seen that an error had been committed in the shortlisting assessment procedure relating to the number of years that he had been with the Lambeth Council. He complained that there were no core questions asked of each candidate. The evidence was that, although they were not written down by all the interviewers, the same areas were explored with each candidate, though not to the same extent with each. He complained that no notes were taken during the interview. Those taken were not taken with sufficient care. He made particular complaints about the references in the Respondents' evidence to "fitting in". He made a number of other detailed complaints referred to in the decision.The Chairman summarized the legal principles and correctly pointed out that it was for Mr Palayiwa, if he wanted to succeed, to prove that, on the balance of probabilities, he was treated less favourably than a person of another race and that the difference in treatment was on the ground of the Applicant's race. Motive was irrelevant. In paragraph 38 the Chairman summarized the correct legal principles by referring to no less than five authorities, the principal one being King v The Great Britain-China Centre (1991) IRLR 513 . The approach is that, if it is shown that there is less favourable treatment of a person of one race than has been received by a person of another race, an explanation should be given by the employer. If that explanation is not regarded as satisfactory or adequate, the Tribunal may make an inference that the reason for the less favourable treatment is racial.The Chairman found that:
"Mrs Scott was regarded as an able, intelligent and enthusiastic candidate with a relevant professional qualification which the applicant did not have and that, despite noted weaknesses, she presented as an individual that she was capable of fulfilling the role required."
Paragraph 40 contains important conclusions of the Chairman on the issue whether the Respondents had provided a satisfactory or adequate non-racial explanation for not selecting Mr Palayiwa. The paragraph reads:
"I find that the applicant was not chosen because of a poor impression given during the discussion group and the final interview which related to a crucial area of attributes which a successful candidate needed for the job, namely, those subtle skills of diplomacy and expression enabling the sensitive message of equal opportunities to be conveyed to all manner of men and women in the face of prejudices which might give rise to resistance if not approached delicately. I find that the applicant came over poorly during the discussion and interviews and rely upon the admitted evidence of the applicant claiming that he could do the job with one hand tied behind his back. This is not to say that I find that the applicant is over-confident or indeed arrogant, but the conclusions reached by the panel on the second day along those lines appear to me to be reasonably reached even if incorrect or inaccurate and related to those matters rather than race. Further I find that the issue of Mr Palayiwa's apparent tendency to `put down' individuals, in particular Mr Caiger and Sergeant Cleave and Inspector Haveron, occurred largely as described by the respondents' witnesses. It was of such moment that it was specifically raised with the applicant. That it was raised is agreed by Mr Palayiwa and I conclude that it was as a result of some clumsiness of language or expression or attitude which resulted in the panel feeling as they did. Unsatisfied, the panel were entitled to conclude (although perhaps wrongly) as they did there is nothing sinister in the use of the language such as being `a team player' needing to `fit in to a job' with such an important and sensitive function. I make it absolutely clear that these are not findings that I would presume to make about Mr Palayiwa as a person. It is simply that in the circumstances that was the impression unfortunately given and the conclusions held by the panel were those reached independently and sincerely. Those views I found were not related to race."
He concluded that Mr Palayiwa had not been the subject of a discriminatory act. The qualities of Mrs Scott, although different and inferior in some respects, were superior in other respects when compared with Mr Palayiwa. He said that he was:
"satisfied that the reasons for the non-selection of Mr Palayiwa were genuinely not related to race and were explained satisfactorily on the basis of the findings of fact above."
For those reasons the application failed.The Chairman dealt, in a careful and comprehensive decision, with other complaints that Mr Palayiwa had about the way in which the Respondents discharged their duties in relation to his complaints and his proceedings. The Chairman criticized the Respondents for the way in which they had dealt with or failed to deal with a number of matters. Mrs Hill, at the hearing this morning, has not ignored these criticisms. She accepts them and has explained to us some of the circumstances relevant to these lapses.Mr Palayiwa's complaints were justified in relation to certain matters. An important failure by the Respondents was to make a full and accurate answer to the race relations questionnaire. Another complaint was the late production of documents. The explanation given by the Respondents was accepted as satisfactory, but the Chairman deplored the fact of the lateness of the production of documents. For example, notes had been made by Inspector Haveron. The Tribunal observed that there had been laxity, but the explanation of the Respondents was accepted. A similar observation was made about the notes of Assistant Chief Constable Dunn. It was found that the non-disclosure was the result of a genuine mistake. For reasons explained by the Chairman, he found that there was no cause for concern in the late disclosure of those notes. He said, however, that, in relation to the responses to the race relations questionnaire, the person responsible for that, Mr Wilkinson, had been careless in his answers, which were not entirely accurate. The Chairman understood Mr Palayiwa's concern and his wish that an inference of racial discrimination should be drawn from that.Having heard the evidence and the witnesses, the Chairman said he was unable to draw the inference of discrimination on racial grounds, though he noted, with regret, the carelessness in completion of the questionnaire had caused concern.We have to ask ourselves what is the legal error in the decision? In his notice of appeal Mr Palayiwa summarized his case on three grounds. First, he said the Tribunal failed to draw the correct and proper inference of unlawful discrimination from the primary facts and, in failing to do that, had acted contrary to what was required by case law and commonsense. He said that:
"the failure to draw the proper inference of less favourable treatment on grounds of race occurred despite the fact that [there were] Primary facts with evidence to support the same, the respondents failed both in their evidence and in their submission to offer any clear, specific, adequate, satisfactory and/or innocent explanation, as to their actions."
Secondly, he said that the Tribunal Chairman:
"reached a decision which is inconsistent with the evidence ... and most certainly not in accordance with the [principles] of Case Law"
Thirdly, the decision was perverse:
"No reasonable Industrial tribunal could have reached that decision were it not for the fact that it made a mistake in the application of the law relating to the issues before it."
Mr Palayiwa amplified those three grounds in his appeal submission. He summarized in that submission the law as he understands it. He points out correctly that it is rare in race discrimination cases to have any direct evidence of discrimination on racial grounds. The cases have developed the doctrine of inferences from primary facts. He submits that where the Applicant has established primary facts and the Respondents have failed to offer clear, specific, adequate, satisfactory or innocent explanations for their actions, the proper inference to be drawn is that of unlawful discrimination. He sets out the primary facts, the most important being that the successful applicant was white, less qualified and with no experience. He was not selected. The Respondents provided no satisfactory explanation, except to say that they thought he would not "fit in". He referred to the findings of the Chairman of the Tribunal that his academic qualifications were superior to those of Mrs Scott and that he had greater experience in the general area of equal opportunities, which resulted in a greater depth of knowledge and understanding of the issues involved in equal opportunities policy and strategy.On that basis, he submits that the inference of unlawful racial discrimination should have been made. The Tribunal had failed to apply correctly the principles relating to inference from the primary facts. He refers to the misleading and untrue response to the questionnaire completed by Mr Wilkinson, the principal personnel officer. The Respondents' evidence and submissions had not adequately addressed that matter. Incompetence and carelessness is not a legal defence. He then went on to explain in a further section of his submission why an inference of unlawful racial discrimination should have been drawn. Under this heading he repeated his complaints of the withholding or refusal to provide documents and the late production of documents relevant to the proceedings. He returned to the issue of the Police evidence on whether or not he would "fit in".He sets out in a long section the detail of his arguments in which he identifies the key points of the law of discrimination.There is a full analysis of the statutory provisions and the relevant legal authorities. At the conclusion of that discussion, Mr Palayiwa submits that the Tribunal erred in law in failing to apply the law correctly to the facts before them. He says this:
"The question for you, Members of the Appeal Tribunal, is, taking into consideration all you have read, would the appellant have been treated differently but for the fact that he is black ... The answer must surely be in the affirmative in this case.
In conclusion, Members of the Appeal Tribunal, the appellant submits that from the `Primary Facts' outlined at length in the submission to the Industrial Tribunal, and taking into account all the relevant facts of the circumstances and the Authorities, the inference to be drawn must be that the Appellant was unlawfully discriminated against on ground of race; and therefore that the appeal should succeed."Attached to the appeal submission are summaries of his written submissions to the Industrial Tribunal. We have read those. They are a detailed explanation of the main points which Mr Palayiwa makes on the appeal.We are not persuaded by the submissions of Mr Palayiwa that there is an error of law in this decision. The Chairman considered in commendable detail all the evidence from the Respondents' witnesses as to the reasons why Mr Palayiwa was not accepted for the post he applied for and why Mrs Scott was accepted. He went into considerable detail in his consideration of the Police evidence about Mr Palayiwa not "fitting in". There are cases where the use of that expression indicates that there is a racial reason why a person has not been selected for a position, e.g. cases where they will not "fit in" because the rest of the workforce is white or of another ethnic group and the applicant is of a different ethnic origin. Race discrimination cannot be concealed by the use of expressions such as "fitting in" or "not fitting in". In this case the Chairman examined what was meant by the Respondents' witnesses about fitting in. He came to a conclusion, which he was entitled to reach on the evidence before him, that the use of that explanation in this case was not racial. He accepted, as we have already pointed out, that what was meant in this case was that he would not have fitted in this job and the requirements of it. An important part of the decision is in paragraph 11 where the Chairman accepted the evidence of Chief Constable Dunn that what they were looking for in this new job was someone with experience and knowledge of equal opportunities and someone who would fit in, be a good team player and have good inter-personal skills. The Chairman expressly accepted in paragraph 12 that the evidence given in relation to "fitting in" was accurate. He concluded this:
"I think that that was a genuine requirement and I accept that it was an essential attribute of any individual who would be able to succeed in the delicate task of advancing the cause of equal opportunities in an organisation which had been recognised by these officers as in need of progress in the area of equal opportunities."
The Chairman accepted, at the conclusion of the decision, in particular, paragraph 40, the explanations of the Respondents as to why Mrs Scott, rather than Mr Palayiwa, was the person who satisfied the requirements of this job .We cannot find any error of law in the conclusions on the fact or the law. He has correctly applied the principle that he must look for a satisfactory or adequate explanation for the less favourable treatment that Mr Palayiwa received in not being selected for the job. He found there was a satisfactory and adequate explanation. It was, for reasons explained, that Mr Palayiwa was not the suitable person for this job. That was no criticism of him as a person or of his qualifications. They thought he was of high academic qualifications and had high local government experience, but that experience and those academic qualifications did not make him, in the view of the Respondents, the best person for the job. The Tribunal accepted the Respondents' detailed explanations from their witnesses as to why he was not the best person for the job. Those were explicitly found not to be racial reasons.This was not a case, therefore, where the Chairman had to drawn an inference of racial discrimination from the less favourable treatment. He found that this was a satisfactory explanation. As there was evidence to support that, which he accepted, the claim was rightly dismissed.There is no ground on which we can allow this appeal. Our jurisdiction is confined to legal errors. There is no legal error in this decision. It is a well-reasoned decision, which correctly applies legal principles to facts which the Chairman was entitled to find on all the evidence. In those circumstances, the appeal is dismissed.