London Borough Of Islington v Obasa [1996] UKEAT 90_95_1709

EAT
London Borough Of Islington v Obasa
[1996] UKEAT 90_95_1709 · 1996-09-17
MR JUSTICE HOLLAND : The London Borough of Islington appeal against a decision of an Industrial Tribunal held at London North, which decision appears from the Extended Reasons sent to the parties on 20th December 1994. The procedural history of this matter is very unfortunate. It starts with a complaint made by Mrs Obasa on the 9th December 1991 alleging racial discrimination on the part of her employers that is, on the part of the London Borough of Islington. That complaint related to her then employment, which employment had commenced on the 4th September 1989. The framing of this complaint raised an immediate problem by reference to Section 68 Race Relations Act 1976 . So far as material this Section provides:
"68(1) An Industrial Tribunal shall not consider a complaint ... unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.
(6) a Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstance of the case, it considers that is just as equitable to do so.(7) for the purposes of this Section ...(b) any Act extending over a period shall be treated as done at the end of that period ..."It was plain that if Mrs Obasa was going to be able to rely upon all the matters invoked by her complaint then she would need an exercise of discretion by the Tribunal in her favour as allowed for by Section 68(6). On the 9th June 1992 the parties came before the Tribunal with a view to dealing with this point; in the event it was dealt with by way of agreement so that in essence Mrs Obasa agreed not to rely upon any events prior to September 1990. It is not clear to this Tribunal, nor indeed to either of the advocates presently before us, as to why September 1990 was selected as providing a cut off point for the litigation. That said, the latter has inevitably proceeded by reference to this agreement.Returning to the balance of the chronology, the substantive hearing before the Industrial Tribunal did not begin until 11th May 1994. After some two days it then had to be adjourned until November, concluding (apart from the distribution of the decision) on the 10th November 1994. The unfortunate delay revealed by the chronology thus far has been compounded by further delay before the hearing of this appeal. We did not think it necessary to make specific enquiry about the circumstances in which we were considering a matter that was first initiated in December 1991 and we are certainly not in a position to blame anyone. Suffice it to comment that it all seems very unfortunate, more particularly for Mrs Obasa.Turning to the decision under appeal it is as shortly expressed at its outset, namely that "The first respondents are in breach of Section 1(1)(a) and 4(2)(b) and (c) of the Race Relations Act 1976 ". That ruling reflected adjudication on three matters; we consider each in turn.The Interview Issue . This arose in the following circumstances. Mrs Obasa was first employed by the Borough as an assistant supervisor at a residential home for adults with learning difficulties, 53 Leigh Road. In the summer of 1990 the position of supervisor at that home became vacant and Mrs Obasa applied for that post. In the result, those responsible for the appointment found themselves having to choose between her and a Mr Bernard Lanagan; in the event they chose Mr Lanagan. It is material to note that Mrs Obasa is black and suffers from sickle cell anaemia whereas Mr Lanagan is white and has no known disability. It was in those circumstances that on the 7th August 1990 Mrs Obasa wrote to the Director of Personnel for the Borough complaining strongly about the result of the selection process in terms which included the following:
"I feel very strongly that the interviewing process used by the panel indirectly discriminated against me as a candidate due to the fact that I am a black woman with a disability. In view of the council's written literature on intent regarding recruitment from Black and Ethnic minority especially with the situation in regard to managerial posts, how does the department demonstrate in practice their commitment to equal opportunities in regards to black women and applicants with a disability?"
That letter received a response by way of a letter dated 16th August 1990 and written on behalf of the Director of Personnel by Mr Paul Deemer. The material part of the letter reads "Your letter does not constitute an appeal under the Council's agreed procedure, for the following reason: you have failed to detail fully the alleged discriminatory incidents. I have, however, forwarded a copy of your letter to the Neighbourhood Officer (Social Services) Drayton Park NO with a request that she/he reply directly to you, giving a more detailed explanation as to why you were unsuccessful on this occasion". Mrs Obasa was understandably aggrieved about the cursory way in which Mr Deemer had responded to her letter and it is that which is the first matter that founds her complaint of racial discrimination against the Borough: she says in effect that it was this failure to investigate alleged racial discrimination that was in itself racially discriminatory. In dealing with this allegation the Tribunal made a finding that "If it is considered that the letter of appeal complies with the procedures then it is for the Director of Personnel to convene a panel to investigate the allegations." As to the significance of this, the Tribunal were assisted by statistics put before them by the Borough. It emerged that each year there are a significant number of complaints addressed to the Director of Personnel about selections, whether based on race or other grounds, but very few indeed proceed to panel hearings, apparently because of the need for full particularity before one such can be justified. Indeed they found that in and between 1991 and 1994 there had only being one panel hearing: that hearing, as it happened, related to a complaint of racial discrimination and was in the event successful. Turning then to the way in which the Tribunal disposed of this issue we cite from the relevant part of paragraph 6:
"[ Mr Deemer ] said that so far as he was concerned Mrs Obasa's letter did not set out in sufficient detail her allegations and that this was the policy which is applied to everybody. Clearly from the statistics it is. However we have to consider whether the policy itself is discriminatory. No clearer statement could have been made by Mrs Obasa that there was discrimination due to her ethnic origin. For procedures to fail to allow for investigation and an appeal when a employee is alleging discrimination we find in itself is discriminatory. We bear in mind that the first respondents from statistics that they have shown us have undoubtedly employed more people from ethnic minorities as a result of their policy. We are also satisfied that there was no intention that there should be discrimination. However having regard to the decided cases intention does not have to be an ingredient before discrimination can be found. We also appreciate that the refusal to hear Mrs Obasa's appeal was outside the time limit for it to be a substantive allegation. Nevertheless it is an ongoing situation as the appeal procedures are the same now as they were then and in any event it is powerful evidence that Mrs Obasa suffered as a result of that policy."
The Tribunal completed its findings on this aspect in paragraph 13:
"We find that for the reasons set out in paragraph 6 of this decision the respondents are in breach of Section 1(1)(a) and Section 4(2)(b) and (c) of the Race Relations Act 1976 in that their appeal procedure for the applicant's allegations of racial discrimination under their Equal Opportunities Policy were such as to prevent the applicant having an appeal in relation to her allegation that in appointing Mr Lanagan as the superintendent she had been discriminated against on the ground of her ethnic origin. The discrimination continues as that policy is still operative."
Before addressing the issues raised in the course of the hearing before us it is convenient to set out the relevant provisions of the Race Relations Act 1976 and to add to the history so far set out. First the Act:Section 1(1). "A person discriminates against another in any circumstances relevant for the purposes of any provision of the Act if -a. on racial grounds he treats that other less favourably than he treats or would treat other persons; orb. he applies to that other a requirement or condition which he applies or would Apply equally to persons not of the same racial group as that other but -(i). which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and(ii). which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and(iii). which is the to detriment of that other because he cannot comply with it.Section 4. ... (2). It is unlawful for a person in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -(a). in the terms of employment which he affords him; or (b). in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (c). by dismissing him, or subjecting him any other detriment."Turning to the additional history it is as follows:25th March 1991 - Mrs Obasa wrote a long letter setting out various grievances, including the one already detailed in this judgment. That letter was addressed to the Borough with a view to obtaining redress.8th October 1991 - Somewhat belatedly, these grievances were aired at a meeting held at the Neighbourhood Services Department.3rd February 1992 - By a letter of that date there is a full but again a very belated response to the complaints of the 25th March 1991 which, inter alia, upholds the stance taken by Mr Deemer in his letter 16th August 1990.12th May 1993 - There is the hearing of an appeal against the findings set out in the letter of the 3rd February 1992. As to this, we have a finding of the Tribunal:
"It was a very through hearing in which Mrs Obasa was represented by her union and every complaint she had was put before that panel. We have read the whole recording of that meeting and we are satisfied that it was a through investigation, the panel upheld the finding of Miss Lloyd and Miss Utka and we cannot find anything racially discriminatory about that process."
We are now in the position to turn to the appeal so far as it relates to the Tribunal's decision on this issue. As to this, we are invited by Mr Burn on behalf of the Borough to analyse carefully what it is that is the subject of the complaint. It is possible to distinguish, first, a procedure which requires alleged racial discrimination to be fully particularised before a complaint as to such will be acted upon; second, the inference that such procedure is in the event rigorously adhered to, hence the very modest number of panel hearings; and third, Mr Deemer's decision (whether reflecting the procedure, its general implementation or his own inclinations) not to regard Mrs Obasa's complaint as sufficiently particularised. The further submission is that it is important clearly to distinguish these concepts because the complaint and its rejection were events preceding September 1990 and thus by way of the consent order not in themselves to be relied upon, unless part of an act extending over a period not terminating until the latter part of 1991, that is, to be open to consideration by reference to Section 68(7)(b). Turning to paragraph 6 of the Decision and the passage already set out above, it is difficult to discern a like analysis as proffered by Mr Burn. True, any alleged discrimination by Mr Deemer personally is rejected as a basis for a decision in favour of Mrs Obasa, given that it happened in August 1990, that is, before September and the agreed limit of the discretion afforded by Section 68(6). For the rest, however, what precisely it is that could found the finding against this Borough on this issue is regrettably not clear. In so far as the appeal procedure requires alleged discrimination to be particularised it surely cannot be categorised as discriminatory; in so far as implementation of that procedure may have been and remains systematically over zealous it still remains difficult to discern the conduct which could be relied upon by Mrs Obasa, this time by reference to Section 68(7)(b). Her difficulties in responding to this part of the appeal are not eased, first, by the Tribunal's mystifying reference to Section 1(1)(a) (and not 1(1)(b)); nor is she assisted by the fact that in event the further history shows that she was one the few people who did have the benefit of an appeal hearing. True, the latter took place well after the initiation of her complaint to the Tribunal but its occurrence well before the Tribunal hearing makes it difficult to follow the contention set out in the last sentence of paragraph 6 that she suffered as a result of ongoing policy. Viewing the matter as at August 1990 we have sympathy for Mrs Obasa in the way in which her complaint was treated, whether that treatment reflected the discretion vested in Mr Deemer or whether it reflected some underlying policy to which he was loyal. Unhappily, that sympathy cannot persuade this Tribunal that there is any good basis upon which we can uphold a decision on this issue in her favour based upon her complaint of December 1991. We cannot sustain the reasoning of the Tribunal and we have thus far to allow the appeal of the Borough.Transfer issue . This issue was first raised by Mrs Obasa in the letter of the 25th March 1991 that has already been referred to. By the time that letter came to be written Mrs Obasa had had some months experience of the supervision exercised by Mr Lanagan, he having been the preferred candidate following the selection process of the preceding summer. Her letter accordingly contains a substantial number of complaints about the way in which he was behaving as supervisor. The letter then concludes with a number of requests, one of which is to have a transfer from 53 Leigh Road. It is germane that in the body of the letter, and quite separately she complains about the conduct of Mr Lanagan in effecting the transfer of a white employee Simone Brown, but refusing the transfer of a black employee, Pearline Brown. This application for a transfer received some apparent assistance following a medical examination of the 23rd September 1991. The Doctor certified to the Borough that Mrs Obasa had been suffering from, inter alia, work related stress as to which he wrote "if this cannot be resolved by consultation within the work place then a transfer would seem the most appropriate action. Medical deployment is not what she wants as she is fit to do this particular job." It is material that the Doctor was unable to give to Mrs Obasa a part (D) certificate, that is, he was unable to certify that she was "incapable of discharging efficiently the duties of her employment by reason of permanent ill health or infirmity of mind or body." Continuing with the chronology there was, as we have already recorded, a discussion of the complaints raised by the letter of 25th March at a meeting of the 8th October 1991. That discussion included the apparent disparity of treatment with respect to transfer meted out to, respectively, Simone Brown and Pearline Brown. As with the interview issue, the next step in the chronology is the letter of the 3rd February 1992. The letter concludes with following "Many of your complaints relate to issues which arose immediately after employment with this authority commenced and concern a wide range of staff. There is, however, evidence to suggest that most of the difficulties which have implications for the current situation at 53 Leigh Road, stem from your unsuccessful application for the post of superintendent. It is acknowledged that from this point, there was a deterioration in working relationships, but evidence suggests that this stems largely from your own reluctance to accept Mr Lanagan as the superintendent, and his right to manage the unit. Given these factors and in the interests of the service, it is considered that consistent line management should be maintained. It would, therefore, not be appropriate to agree to your transfer request at this stage." To complete the relevant chronology it remains to add that in May 1993 there was the hearing of the appeal that has already been referred to and which served to uphold the findings as set out in the letter of the 3rd February 1992. Yet further, in that month a transfer for Mrs Obasa was finally agreed.All this was considered as a separate issue by the Industrial Tribunal. In paragraph 10 of their Extended Reasons, they made a finding that the failure to transfer Mrs Obasa was "undoubtedly bad management", which finding reflected the evidence as to the personality clash between her and Mr Lanagan; it also reflected the failure to act upon the advice given by the Doctor in September 1991. The Reasons then continue:
"However there is another factor and that is this: a white employee, Simone Brown was transferred. Mr Wiltcher said she did not go through the usual procedures, but she was transferred rapidly. Also Miss Pearline Brown who is black was transferred but not at her first request to a day unit and where the hours where shorter. She had a far greater struggle. The inference we draw from that evidence is that a substantial reason, again not intentional, for the failure to transfer Mrs Obasa months if not years ago was not due to the inability to achieve this but due to her ethnic origin."
Subsequently the Tribunal concludes the issue with the finding:
"Finally, as set out in paragraph 10 of the decision we find a breach of Section 1(1)(a) and 4(2)(b) of the Act by reason of the Respondent's refusal in January and February 1992 to transfer the Applicant as she requested whereas a white employee had been transferred at that employee's request."
On behalf of the Borough, Mr Burn submits that this finding was perverse, that is, it was not open to a reasonable Tribunal upon the evidence. His primary point reflects the relevant passage in the letter of the 3rd February as set out above. The reason for refusing a transfer as there set out plainly owed nothing to racial discrimination: did it stand up to examination? As to this, first, it was inferentially upheld by the Borough's appeal panel following the hearing of the 12th May 1993 - a decision explicitly found by the Tribunal as non-discriminatory. Second, the reason as set in the letter was upheld in evidence to the Tribunal by the author Miss Utka and by Mr Wilkes who had overall responsibility for 53 Leigh Road. None of the foregoing is reflected in the Reasons for the decision in favour of Mrs Obasa on this issue. Mr Burn's next point relates to the line of reasoning that does appear from the Reasons: comparison of the treatment received by Mrs Obasa with the treatment received by fellow employees. Mr Burns submits that the evidence put before the Tribunal showed that the transfer of Simone Brown (white) did not reflect the Borough's procedure and should not have occurred; that the transfer of a Miss Moore (white) was refused; that the transfer of Pearline Brown (black) was refused for reasons other than racial; and that Miss Makarn (black) was transferred. Turning from that evidence to the Reasons he submits that the former is not reflected in the latter. Finally, he points to statistical evidence put before the Tribunal but not referred to in the Reasons, which evidence was to the effect that transfers were generally difficult to effect, even if the request flowed from a paragraph (D) medical recommendation.On behalf of Mrs Obasa. Mr Ford rightly emphasised the respect that this Tribunal should give to facts as found by the Tribunal and submitted that those found so as to lead to a finding for his client on this issue could be sustained, as could the inference said to arise from such facts.Having given full attention to these submissions of Mr Ford, we find ourselves driven to uphold the submission of Mr Burn. On the evidence put before this Tribunal a finding for Mrs Obasa on this issue was not an option that was available.The Qualification Issue . This was similarly raised by Mrs Obasa in the letter of the 23rd March 1991. It arises as follows. Prior to entering employment with the Borough she had acquired a number of qualifications and on the strength of such she was allocated spinal column point 25 in Grade 4. Within the latter there is potential for a higher allocation, that is to points 26 or 27 but only if the employee has certain specific qualifications or qualifications equivalent thereto. Mrs Obasa's qualifications are not as specified; she contends that they are equivalent to such. The relevant scheme of Conditions of Service for Residential and Allied Staffs has a provision apparently relevant to this issue:
"If an employee holds a qualification not listed above advice as to its acceptability should be sought from the Joint Secretaries of the Provincial Council."
In the event, first, Miss Utka in the letter of the 3rd February 1992 rejected Mrs Obasa's contentions as to the weight of her qualifications; and second, the evidence of Miss Utka to the Tribunal was to the effect that there had been no reference to the Joint Secretaries before making this ruling, albeit that there had been some enquiry with the Royal College of Nursing with results unfavourable to Mrs Obasa. She added that in the event they never sought rulings from the Joint Secretaries. By way of response, the Tribunal's Reasons on this issue are as follows:
"We were told and we accept that never has the advice relating to the acceptability of the qualifications been sought from the Joint Secretaries of the Provincial Council. In other words that part of the agreement with the Union has been completely ignored. It was submitted that as that applies to everybody there cannot be any discrimination because it was the policy of the department not to apply that term. It is correct that it does apply to everybody but we find that inevitably people of ethnic minority may not have the qualifications that are set out ... and then it would be in many cases and in this particular case discriminatory not to ... seek the advice of the Joint Secretaries ... (The Borough) have now agreed to do that somewhat late in the day."
Having set out the foregoing, there is then a consequent finding of racial discrimination,

"a breach of sections 1(1)(a) and 4(2)(b) of the Act."

Mr Burns submits, first, that a finding invoking Section 1(1)(a) plainly cannot be sustained on the Reasons as set out above: if they sustain any finding it is by reference to Section 1(1)(b). To us, this submission seemed incontestable. His second submission was that there was no evidence that the policy as set out in the Reasons had in the particular case been discriminatory against Mrs Obasa. We have to hold, despite the best efforts of Mr Ford, that there is no answer to this. We would agree with the Tribunal that a blanket refusal to check the weight of qualifications that are not those that are specified could by reference to Section 1(1)(b) be discriminatory: members of ethnic minorities who have acquired their qualification abroad would be particularly disadvantaged. However Mrs Obasa obtained her qualifications in this country and there is simply no evidence to support the notion that the Borough's policy discriminated against her on racial grounds.In the overall result we have to allow this appeal and quash the findings of racial discrimination made by the Tribunal. The latter was plainly sympathetic to Mrs Obasa, perhaps understandably given that her grievances were dealt with by her employer in a manner which fell some way short of the standards that might be reasonably expected of an employer of the size and the resources of the London Borough of Islington. Our role as a Tribunal of law however leaves us with no option but to rule as we have done.