Buckinghamshire County Council v Ahmed [1998] UKEAT 124_98_1806

EAT
Buckinghamshire County Council v Ahmed
[1998] UKEAT 124_98_1806 · 1998-06-18

JUDGE J HULL QC :

This is an appeal to us by Buckinghamshire County Council against a decision of the Industrial Tribunal sitting at Reading under the Chairmanship of Mr Hollow on 19 and 20 November 1997. By their decision, which was sent to the parties on 27 November 1997, the Tribunal upheld a complaint which was made to them by the Respondent of this appeal, Mr Ahmed.Mr Ahmed had applied to the county council for an appointment as an interpreter in Punjabi interpreting into English. He is from that part of the world and the application which he made was not for a full-time employment but for so to speak freelance employment or part-time and occasional employment. He would be placed, if successful, on a list of interpreters. That list was a long one and we have seen it.Mr Ahmed went on an induction course, he was accepted and he went on to the list. The list has, according to my count, interpreters collectively skilled in no less than 35 different languages, which reflects the very wide ethnic composition of various minorities who fall under the jurisdiction of Buckinghamshire County Council. So far as we are concerned the main employment for those interpreters, although no doubt there was other employment for them, was in connection with the social services; problems would arise regularly, sometimes out of Police activity, sometimes in connection with health, sometimes in connection with all sorts of matters in which members of minority communities might well be involved and as is well known a large number of members of minority communities are not fluent in English particularly for the purposes (which may be fairly complicated) when difficulties arise.So that was the application which Mr Ahmed made. He was successful. In August 1996 he was placed on the list of interpreters. That list is with our papers, starting at page 47. If one looks through there is a long list of people who are skilled in Punjabi, the great majority of them are ladies, labelled F, (p49), some of them are men. The list shows occasions when individual interpreters were called out between May 1995 and October 1997 and as can be seen when one comes to the Punjabi section probably the majority of the ladies on that list were invited but none of the men were invited to act as interpreters during the period which we are concerned with.That does not apply to other interpreters. For example, two male Arabic interpreters were employed, there was a male Bengali interpreter who was employed during this period and also (p50) there was a Serbo-Croat male interpreter who was employed. But by and large the picture is that first of all there are more women than men interpreters, certainly in certain languages, and that more women than men are in fact called on to interpret. It would need a statistician of skill who would probably require a great deal more evidence than was available from this list to say what if any significance could be attached to this. But the fact is that on a number of occasions it is clear, and it was admitted at the hearing, that on occasions women are preferred because they are women.Now we must go to the nature of the complaint. Mr Ahmed complained of both racial and gender discrimination. He is skilled in Punjabi and of course in English. The complaint of racial discrimination was not proceeded with but he said that he was discriminated against on the ground of gender because between August 1996 and January 1997 he never was called on to exercise his skills as interpreter.The authority defended the case as of course they were entitled to. They called a lady who was responsible for the social services' interpreters service, a Mrs Powell, clearly on paper a most impressive witness, skilled in a number of languages and anxious to make sure that the list of interpreters consisted entirely of effective, available interpreters who would do the job properly. The authority also called two social workers, at least, who gave evidence at the Tribunal. The Tribunal had to decide whether there was indeed unlawful discrimination against Mr Ahmed.The statutory provisions which relate to this are set out in the Sex Discrimination Act 1975. After defining discrimination in S.1, S.6 provides
"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman- (a) in the arrangements he makes for the purpose of determining who should be offered that employment,"
When one reads 'woman' in this Act the same, with other things being altered appropriately, applies of course to a man. The Act is neutral as between men and women.It being appreciated by the authority that there were a number of occasions, which were described to the Tribunal, on which women were preferred because they were women, the authority referred to S.7 of the Act and that provides, under sub-section (1):
"In relation to sex discrimination; (a) section 6(1)(a)" which is the sub-section I have just read "...does not apply to any employment where being a man is a genuine occupational qualification for the job"
Then it goes on to say what it means by a genuine occupational qualification. The material paragraph is (e)."(e) the holder of the job" that means in this context the interpreter "provides individuals with personal services promoting their welfare or education, or similar personal services, and those services can most effectively be provided by a man," as I say, equally one can put 'woman' there.So the criterion is that a genuine occupational qualification may be put forward if the holder of the job provides individuals with personal services promoting their welfare (that is the case here) and those services can most effectively be provided by a man or, as the case may be, a woman. What was said in this case, and I am going to turn to the Decision in a moment, but what was said by the authority was this, that in a number of the ethnic communities with which they dealt and in particular the Punjabi Muslim community, there was great delicacy in dealing with women who were concerned in various social or medical or other problems. It was said that if an interpreter were to go into one of the homes, or to see women collectively at perhaps a 'well woman' session, or women's health session or something of that sort, it would be regarded generally in the community and by the woman concerned as inappropriate that the interpreter should be a man. It was said that although if (say) a white social worker went to a house that might be in order, if a person who was a Punjabi went there it were better, it said, that it should be a woman than a man, out of feelings of delicacy and tact.It was not said, of course, that it was essential that it should be a woman interpreter but what was said was that the services could be provided more effectively: it would be easier for a Punjabi Muslim woman, on many occasions, to explain in such matters as the case perhaps where her children had been involved in matters which had attracted the attention of the Police, or where she herself had medico-social problems or something like that. It would be easier for her to speak to a woman and would not attract the sort of comment that might happen if a male Punjabi-speaker, particularly a Punjabi himself, were to go to the house. That would not apply so much to the social worker, particularly if that social worker were in fact a native Englishman, if I can put it like that.So that was put before the Industrial Tribunal. I must refer now to the reasons which the Tribunal gave. They upheld Mr Ahmed's complaint. They found it an exaggerated complaint for reasons which they gave, 'exaggerated' in its effects, but they found that he was entitled to compensation. I now refer to what appear to us to be the important parts of the Tribunals decision, which was a decision of them all.Among their members was a gentleman who was in fact a Sikh and who attended and sat in the Tribunal with his turban and beard, of course, and was identifiably and obviously a Sikh and he was from the same part of the world, we are told that Sikhs come from one part of the Punjab and Muslims from another nearby, and that had some significance.The Tribunal recounted many of the matters which I have already referred to. They say first of all that they were satisfied that:
"...the intention was that interpreters would be asked to provide their services as and when needed on a sessional basis for which they would be paid a fee."
I should explain that although the Act refers to people in employment, "employment" is given a wide definition and it is conceded that it applies to these part-timers, these casual workers who might be called on, on any occasion, to provide the services of interpreters.The Tribunal was satisfied that the arrangements fell within the scope of S.6(1) and also they recorded the matters which are set out in S.7 to which I have referred. They then referred to the way in which they were to approach their task in para 3 of their decision. Quite rightly they referred to the case of Tottenham Green Under Five Centre v Marshall [1989] IRLR 147 and King v Great Britain China Centre [1992] ICR 516 . They went on to say if there is a difference made between men and women we have to consider whether we should draw the inference that there has been unlawful discrimination.
"Before any inference is drawn, we have to have regard to any explanation which may be put forward by the respondent for the purpose of explaining its actions. We have to look at that explanation and decide whether it is appropriate to draw the inference of discrimination or not. If the explanation is a satisfactory one, it may be less likely that we shall draw an inference of discrimination. If the explanation is unsatisfactory, it may be more likely, but it does not follow that the inference must be drawn, it is always a matter for us."
The second sentence is undoubtedly correct. The third sentence appears to us to be quite incorrect. If a satisfactory explanation is given to the Tribunal of why there is a discrimination between men and women then they are not to draw an inference of unlawful discrimination because by definition a satisfactory explanation, which they accept, has been given.They then talk about the county council area having a significant population of ethnic minority. They should, we think, have said 'minorities' because clearly there will be a number of such minorities, that is clear from the list of interpreters itself and it is wrong, of course, to lump minorities together and talk about the 'ethnic minority', but that may just be a slip of the tongue.They then went into the figures which they had been shown. There were 23 female interpreters in Punjabi and three male. They went into the figures that showed that in fact the male interpreters in the period they were considering had not been called on.They say that an approach was made to one male Punjabi interpreter but he unfortunately was not available or his services at any rate in the event were not required. They then refer to a list which was produced, which I have already referred to. They say that the three male interpreters were not called on during the period, as I have said.
"The applicant, as has been indicated, has invited us to draw the inference of discrimination. The evidence that we have heard from the respondents, principally from Mrs Powell herself is that there are many occasions upon which it is desirable that the services of a female interpreter would be used. "
Well they had indeed heard evidence. Mrs Powell's evidence in chief is with our papers (p37 onwards); as I have said Mrs Powell is the most impressively qualified person and she has also an impressive record of public service in various ways and she made herself responsible for the list and the way in which the policy with regard to interpreters was implemented. They also heard the statements of two social workers, a Mr Rod Colquhoun and a Mr Barry Kirwan, both of those interpreters gave evidence of how it was preferable in particular circumstances to make use of a female interpreter with the Punjabi community and Mr Kirwan says at the end of his evidence:
"It is normal in an Asian family for the mother to feel powerless and excluded in the decisions of the family. It is important that we give them an insight into the behaviour of their children. When I work with these families I will always take account of the wishes of the mother in her choice of interpreter and to date they have always chosen a female interpreter."
There was other evidence to the same effect and that was laid before the Tribunal. It was the Tribunal's duty, not ours, to decide on the facts. They are "the Industrial Jury", they are the jury whose duty it is to decide the facts. Then the Tribunal referred to S.(7), and they cite correctly the language of para (e) of sub-section (2).They say "it may be that the problem", they are talking about social problems,
"relates to sensitive medical issues; it may be that it relates to marital problems, family problems or childcare problems. Furthermore the respondents say that a rapport may very often develop between a client and an interpreter. Quite plainly the interpreter is involved in the provision of personal services promoting the welfare of the client and, say the respondents, when such a rapport develops, it is desirable that if possible the same interpreter should be used order to maintain the confidence of the client."
Then they say:
"The respondents' case was that of the occasions when the females were required, there had either been a request for a particular social worker to continue with a case in which he had been involved previously for reasons of continuity or, alternatively, there had been a request that by reason of the sensitive nature of the problem the interpreter should be a female."
They go on to consider numbers again, para 8:
"The first question we have to ask ourselves is whether the facts that the applicant has established are capable of supporting the inference of discrimination. If we accept that in the period from December 1995 to October 1997 there were 69 occasions when no specific request was made, we are of the opinion that it would be legitimate to draw the inference of discrimination.
In her submission Miss Gill says that that is an unsatisfactory finding. She says not only were male interpreters not called on, a large number of female interpreters were not called on too.Then they discuss the figures further and go on to say:
"That is the explanation that the respondents have put forward to us. We have to say that it is an explanation we have great difficulty in accepting. We can accept there may be cultural reasons why it would be preferable to use both a female" we think we are omitting there the words 'social worker "and a female interpreter, but it seems to us incredible that whilst a female interpreter would be required a male social worker would nevertheless be acceptable."
There, again, the Tribunal are criticised. It is not a case of a female interpreter being required, says Miss Gill, it is a case of the service being most effectively provided by such an interpreter.Then the Tribunal go on to say this:
"We are assisted in our view by Mr Gidda who is himself a member of the ethnic community and is able to draw on his own knowledge and experiences of this situation. We find that the explanation underlying the respondents' case that there is a genuine occupational qualification is one which we are unable to accept and on the facts we find that it has not been established."
So there this Tribunal is rejecting the evidence of Mrs Powell and the two social workers. Of course they are not bound to accept any evidence but one would expect in the circumstances that they would then give some details of why they were rejecting it. These, after all, were not simply ordinary lay witnesses. They were witnesses with skill and wide experience in their calling. Did the Tribunal not think they were giving their evidence in good faith? Did they think they were wholly mistaken? Did they think that there was some sort of inherent bias which had crept into the way in which the authority worked its social services? They do not. But they do refer to Mr Gidda, saying
"We are assisted in our view by Mr Gidda who is himself a member of the ethnic community..."
That is criticised by Miss Gill. It is said Mr Gidda is a member of the Sikh community. That is not the same community as the Muslim community even if they do both come from the Punjab. But overriding this and much more important, Miss Gill says to us: "If they were going to rely on Mr Gidda's expertise to reject the evidence of Mrs Powell and the two social workers and to say "that, simply and shortly, is why we do not accept this evidence", then that should have been explained. It should have been explained to all those before them that Mr Gidda had this expertise, understood the Muslim community as a Punjabi, and could well speak to their customs and practices and that his experience told contrary to that of the evidence which they had heard and he for himself was minded to reject that evidence because of his experience. No doubt the Tribunal would then be asked by the authority's representative, would they please say exactly what Mr Gidda's experience was and how much experience he had had dealing with delicate social or medical or other problems of that sort, problems regarding juvenile crime and so on, with members of the Muslim community and their interpreters. It might be that the Tribunal would have been able to say that in spite of any evidence they had heard they still meant to rely on Mr Gidda but in those circumstances the parties would at any rate be on notice and would have an opportunity of dealing with the matter.For that proposition Miss Gill relies on the case of Hammington v Berker Sportscraft Ltd [1980] ICR 248. The " Held "note states all that we need to refer to there, we think,
"...where a tribunal relied on the personal knowledge and experience of one of their members it was necessary to indicate not only that the member was a specialist in the field, as had properly been done," (in that case) "but it was also necessary to bring the facts known by that member to the attention of the employee's counsel so that if they were relied on counsel could either deal with them or ask for an adjournment: as the matter had not been dealt with in this way, the case would be remitted for rehearing."
The judgement, which is a very authoritative one, cites from a number of authorities in which that has been stated time and again by a great many courts and judges, including the Lord Chief Justice of the time, Lord Widgery. So that is not a point which needs to be laboured. It is common ground and indeed Mr Ahmed himself says this is a point which he makes almost a virtue of, it was not disclosed to the parties that Mr Gidda had this special knowledge and experience, as the Chairman has said in reply to an affidavit which has been sworn in the case. Mr Ahmed says that was quite unnecessary. "Everybody could see that Mr Gidda was a Sikh, everybody knows. All the persons from that part of the world, and there were a number involved, knows perfectly well that Sikhs and Muslims from the Punjab are part of the same community and so there was no need for Mr Gidda's position to be made plain." Mr Ahmed says Mr Gidda was there precisely to do what he did do, to help his colleagues with matters about which he might have some special knowledge.With regard to the way in which the Tribunal dealt with the case otherwise Miss Gill has invited our attention to Tottenham Green Under Five Centre v Marshall [1989] IRLR 147. That was a case in which the authority responsible for the school had advertised that they wished to recruit an Afro-Caribbean nursery worker. It was their bona fide belief that such worker was necessary because of the racial, or ethnic composition of the school and that it was in the Schools interests that such a worker should be recruited. The Industrial Tribunal rejected the submission that that was legitimate under the statutory equivalent of S.(7) to which I have already referred. It was not necessary to employ an Afro-Caribbean worker in the view of the Tribunal.But our Tribunal, dealing with that matter, allowed the appeal. They said that the Industrial Tribunal was in reality suggesting that the employer in such circumstances had to show that it was absolutely necessary to employ a worker from a particular ethnic group, and that was not so. The expressions used in the Statute were wide; "promoting the welfare of the children" [in this case of the social service clients], "is a wide expression" said our Tribunal and what the Statute said, "those services can most effectively be provided by a person of that racial group", was not "must be provided", or "can only be provided". Then the Tribunal said this (this is Wood J in our Tribunal, p149, para 14):
"However, it seems to us that if any tribunal accepts that the conscious decision of a responsible employer to commit an act of discrimination and to rely upon S.(5)" as it is in the Race Relations Act "is founded upon a genuinely held and reasonably based opinion that a genuine occupational requirement will best promote the welfare of the recipient then considerable weight should be given to that decision when reaching a conclusion whether or not the defence succeeds."
So it seems to us that quite apart from the matter of Mr Gidda's part in their decision this Tribunal, if they were going to reject the evidence of Mrs Powell and her colleagues in the social service, should have given reasons and not simply treated it as evidence which they could in a sentence or two accept or reject, finding it "hard to accept". They should have thought about it very carefully and as our Tribunal has said, should have given considerable weight to it and if they felt obliged to reject it should have stated quite clearly why they did.They did explain, in one important respect, that it was Mr Gidda who himself seems to have played the decisive part. In so far as their decision was a rational one, and we are sure it must have been even if it was not set out at length, it must be Mr Gidda who had persuaded them to reject this evidence on the basis of, as they say, his own knowledge and experience. It is common ground, Mr Ahmed concedes it and makes a point of it, that Mr Gidda's expertise, his knowledge, his experience were not explained to the parties.In our view, having thought about it as carefully as we can, we are all of the opinion that that, coupled with the other criticisms which have been made, makes this decision an unsafe and unsatisfactory one, that is to say the Tribunal had not set out in a satisfactory way the reasons for their decision and undoubtedly made an error of law when they did not explain to the parties, while they were before them, the part which Mr Gidda would or might play in arriving at their decision.In those circumstances it is plain that the decision has been arrived at in a way which is unsatisfactory in law. There is nothing we can do about it because as I have explained we are only a Tribunal of Law, we have no jurisdiction over facts at all and we therefore have to say that this case must be remitted to an Industrial Tribunal differently constituted so that they can try the case anew and hear such evidence as the parties wish to lay before them and reach a conclusion without reference to what has gone before, simply on the evidence before them. If they should be minded to rely on their own knowledge they will, no doubt, explain to the parties what that knowledge, experience and expertise is so that the parties can deal with it.We say nothing about what the likely result of that is. That is entirely a matter for the Tribunal who try the case. It may very well be that in view of the comparatively small sums involved the parties will not find it necessary to pursue the matter but that is entirely a matter for the parties, we have no control over that whatever.So, Miss Gill, Mr Ahmed, you will now, I am afraid, have to go back to another Tribunal and there, if you wish to, go through the case again.